Asser International Sports Law Blog - International Sports Law CommentariesOur International Sports Law Diary <br/>The <a href="http://www.sportslaw.nl" target="_blank">Asser International Sports Law Centre</a> is part of the <a href="https://www.asser.nl/" target="_blank"><img src="/sportslaw/blog/media/logo_asser_horizontal.jpg" style="vertical-align: bottom; margin-left: 7px;width: 140px" alt="T.M.C. Asser Instituut" /></a>http://www.asser.nl/SportsLaw/Blog/
http://www.rssboard.org/rss-specificationBlogEngine.NET 2.9.1.0en-UShttp://www.asser.nl/SportsLaw/Blog/opml.axdhttp://www.dotnetblogengine.net/syndication.axdAsser International Sports Law CentreAsser International Sports Law Blog0.0000000.000000Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - By Daniela Heerdt<p align="justify"><b>Editor's note</b>: Daniela Heerdt is a PhD
candidate at Tilburg Law School in the Netherlands. Her PhD research deals with
the establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games. <br></p><p align="justify"><br></p><p class="MsoNormal" align="justify">About three years ago, the Fédération Internationale de Football
Association (FIFA) adopted a new version of its <a href="https://resources.fifa.com/image/upload/the-fifa-statutes-2018.pdf?cloudid=whhncbdzio03cuhmwfxa">Statutes</a>,
including a statutory commitment to respect internationally recognized human
rights. Since then, FIFA undertook a human rights journey that has been praised
by various stakeholders in the sports and human rights field. In early June, the
FIFA Congress is scheduled to take a decision that could potentially undo all
positive efforts taken thus far.</p>
<p class="MsoNormal" align="justify"><a href="https://www.fifa.com/about-fifa/who-we-are/news/fifa-council-unanimously-decides-on-expansion-of-the-fifa-world-cuptm--2863100">FIFA</a> already decided in January 2017 to increase the
number of teams participating in the 2026 World Cup from 32 to 48. Shortly
after, discussions began on the possibility to also expand the number of teams for
the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a <a href="https://resources.fifa.com/image/upload/idhwq1ychz15wifipcna.pdf">feasibility
study</a>, which revealed that the expansion would be feasible but require a
number of matches to be hosted in neighbouring countries, explicitly mentioning
Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One
does not have to be a human rights expert to be highly alarmed by this list of
potential co-hosting countries. Nevertheless, the FIFA Council approved of the
possibility to expand in March 2019, paving the way for the FIFA Congress to
take a decision on the matter. Obviously, the advancement of the expansion
decision raises serious doubts over the sincerity of FIFA’s reforms and human
rights commitments. </p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><u>The Human Rights Climate in Potential Co-hosts</u></p>
<p class="MsoNormal" align="justify">The list of human rights issues commonly linked to the potential
co-hosts is long.<a href="#_edn1" name="_ednref1" title="">[i]</a>
All of them uphold severe restrictions on the freedom of expression and
regularly silence activists. Women face discrimination under the law of a
number of these countries, and the rights of migrant workers are not adequately
protected, leading to abusive situations and forced labour.<a href="#_edn2" name="_ednref2" title="">[ii]</a>
Arbitrary arrests and unfair trials and sentencing are widespread in <a href="https://www.amnesty.org/download/Documents/MDE2099102019ENGLISH.pdf">Oman</a>.<a href="#_edn3" name="_ednref3" title="">[iii]</a>
<a href="https://www.hrw.org/middle-east/n-africa/bahrain">Bahrain</a> has a
habit of detaining, torturing and deporting human rights defenders and <a href="https://www.hrw.org/middle-east/n-africa/kuwait">Kuwait</a> refuses to
recognize the 100,000 Bidun living in the country as Kuwaiti citizens, leaving
them stateless. The latest add-on to <a href="https://www.hrw.org/middle-east/n-africa/saudi-arabia">Saudi Arabia’s appalling
human rights track record</a> is the <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24510&amp;LangID=E">mass
execution of 37 individuals</a>, which proceeded against vociferous criticism
from other states and human rights organizations about the lack of due process
and allegations of torture having been used to obtain confessions of those
convicted and executed. Furthermore, even the highest football official cannot
have missed the allegations on Saudi officials being involved in the <a href="https://www.theguardian.com/world/2019/jan/24/un-forensics-team-to-visit-turkey-in-inquiry-into-khashoggi-death">murder
of the journalist Jamal Khashoggi</a> in the Saudi consulate in Turkey in
October 2018. Finally, the active involvement of and alleged attacks on
civilians launched by Saudi Arabia and the <a href="https://www.hrw.org/middle-east/n-africa/united-arab-emirates">UAE</a> in
the Yemen war can also not be ignored.</p>
<p class="MsoNormal" align="justify">In addition to these structural human rights issues spread in the
region, a number of these countries have been involved in very recent
football-related human rights cases. In January 2019, <a href="https://www.theguardian.com/world/2019/feb/05/british-man-detained-in-uae-after-wearing-qatar-football-t-shirt-to-match">a
British football fan, Ali Ahmad, has been detained</a> for three weeks and
suffered torture by UAE security officials for wearing a Qatari football jersey
to an Asian Cup match between Qatar and Iraq. In February 2019, <a href="https://www.smh.com.au/world/asia/i-was-crying-inside-melbourne-soccer-player-hakeem-al-araibi-on-the-bungle-that-landed-him-in-a-thai-jail-20190409-p51cck.html">Hakeem
al-Araibi</a>, a football player from Bahrain, now living as refugee in
Australia, has been released from Thai prison after his arrest in November
2018. The Thai authorities acted upon an arrest warrant issued by Bahrain, where
Hakeem had been convicted <i>in absentia</i>
to 10 years in prison for an incident dating back to November 2012. The
official allegations were vandalism of a police station, but there is clear
evidence that discharges Hakeem of these allegations. Most likely, he became a
target of Bahraini government and football officials that identified and
persecuted Bahraini football players that were involved in anti-government
protests during the Arab Spring in 2012. <br></p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><u>The Mismatch with FIFA’s Standing Human Rights Commitments</u></p>
<p class="MsoNormal" align="justify">This brief overview presents just a fraction of the extremely
negative human rights track record of the countries that FIFA is considering as
potential co-hosts for the 2022 World Cup. In case one of these countries will indeed
host a World Cup match, FIFA risks to throw away all efforts that it carefully
put into building up its human rights profile in the past three years. After
the inclusion of human rights into its Statutes, FIFA created a <a href="https://www.fifa.com/governance/news/y=2017/m=3/news=independent-advisory-board-of-human-rights-experts-to-meet-on-13-march-2875485.html">Human
Rights Advisory Board</a> in March 2017, adopted a <a href="https://resources.fifa.com/mm/document/affederation/footballgovernance/02/89/33/12/fifashumanrightspolicy_neutral.pdf">human
rights policy</a> in May 2017, and launched a <a href="https://www.fifa.com/governance/news/y=2018/m=5/news=fifa-launches-complaints-mechanism-for-human-rights-defenders-and-journalists.html">complaint
mechanism</a> for human rights defenders and media representatives in the
run-up to the 2018 World Cup in Russia.</p>
<p class="MsoNormal" align="justify">Most importantly, in October 2017 FIFA integrated human rights
requirements in its <a href="https://resources.fifa.com/mm/document/affederation/administration/02/91/60/99/biddingregulationsandregistration_neutral.pdf">bidding
requirements for the World Cup</a> following
John Ruggie’s recommendation to “set explicit human rights
requirements of Local Organising Committees in bidding documents for
tournaments and provide guidance on them”.<a href="#_edn4" name="_ednref4" title="">[iv]</a>
The revised bidding requirements expect bidders to conduct all bidding and
hosting activities in line with internationally recognized human rights.<a href="#_edn5" name="_ednref5" title="">[v]</a>
Furthermore, bidders are required to submit a public commitment to respect
human rights and a human rights strategy, together with a report on stakeholder
engagement in developing the policy.<a href="#_edn6" name="_ednref6" title="">[vi]</a>
The new requirements applied for the first time to the
bidding process for the 2026 World Cup and while the 2022 World
Cup had been awarded before, the new standard forms an integral part of FIFA’s
human rights system by now and therefore should be considered in the recent
expansion plans. </p>
<p class="MsoNormal" align="justify">Interestingly, the <a href="https://resources.fifa.com/image/upload/idhwq1ychz15wifipcna.pdf">feasibility
study</a> on the expansion of the 2022 World Cup mentions human rights at
several points: in the context of requirements regarding stadiums (p. 32 &amp;
46), as part of requirements for additional infrastructure and sites (p. 46),
and as one of the necessary government guarantees to be submitted to FIFA
(p.68). Receiving such guarantees from the respective government might not pose
a problem. Instead, the real issue at stake is whether FIFA truly cares about
its human rights commitments when considering if these guarantees turn out to
be nothing but empty words on a piece of paper? FIFA risks failing its
commitments by letting any of the proposed countries co-host the World Cup
without having done a proper human rights risk assessment. </p>
<p class="MsoNormal" align="justify">Despite this risk, the expansion seems to be more likely to happen
than not. FIFA President Gianni Infantino appears to be convinced that the
expansion can contribute to solving the <a href="https://www.bbc.com/news/world-middle-east-40173757">diplomatic crisis</a>
that is ongoing in the region and <a href="http://www.espn.com/soccer/blog-fifa/story/3800970/fifa-to-make-decision-on-expanding-2022-world-cup-in-june">stated
on record</a> that a preliminary survey showed that 90% of the member
associations are in favour of the expansion. Indeed, the decision lies in their
hands. They make up the members of the FIFA Congress, FIFA’s supreme body for
decision-making, and each member association has one vote. While a number of
associations and confederations already <a href="https://www.bbc.com/sport/africa/47571763">publicly announced their
support</a> of the expansion, there is still hope that other member
associations or confederations remind FIFA of its human rights responsibilities
and commitments by voting against it. </p>
<hr width="33%" size="1" align="left">
<p id="edn1">
</p><p class="MsoEndnoteText"><a href="#_ednref1" name="_edn1" title="">[i]</a> For an overview of human rights issues linked to these countries,
see Human Rights Watch (2019), “<a href="https://www.hrw.org/world-report/2018">World Report 2018</a>”.&nbsp;
</p>
<p></p>
<p id="edn2">
</p><p class="MsoEndnoteText"><a href="#_ednref2" name="_edn2" title="">[ii]</a> See for example
Human Rights Committee CCPR/C/BHR/CO/1 (2018), “<a href="https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/BHR/CO/1&amp;Lang=En">Concluding observations on the
initial report of Bahrain</a>”.
</p>
<p></p>
<p id="edn3">
</p><p class="MsoEndnoteText"><a href="#_ednref3" name="_edn3" title="">[iii]</a> Human Rights Council A/HRC/29/25/Add.1 (2015), “<a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/083/10/PDF/G1508310.pdf?OpenElement">Report of the
Special Rapporteur on the rights to freedom of peaceful assembly and of
association, Maina Kiai – Mission to Oman</a>”, para 20 ff.
</p>
<p></p>
<p id="edn4">
</p><p class="MsoEndnoteText"><a href="#_ednref4" name="_edn4" title="">[iv]</a> John G. Ruggie (2017), “’<a href="https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/Ruggie_humanrightsFIFA_reportApril2016.pdf">For the Game. For the World’ FIFA &amp;
Human Rights</a>”, p. 32.</p>
<p></p>
<p id="edn5">
</p><p class="MsoEndnoteText"><a href="#_ednref5" name="_edn5" title="">[v]</a> FIFA (2017), “<a href="http://resources.fifa.com/mm/document/affederation/administration/02/91/60/99/biddingregulationsandregistration_neutral.pdf">FIFA REGULATIONS for the selection of the venue for
the final competition of the 2026 FIFA World Cup™”,</a> Regulation 8.1 (ii).</p>
<p></p>
<p id="edn6">
</p><p class="MsoEndnoteText"><a href="#_ednref6" name="_edn6" title="">[vi]</a> Ibid., Regulation 8.2.<br></p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/will-the-world-cup-2022-expansion-mark-the-beginning-of-the-end-of-fifa-s-human-rights-journey-by-daniela-heerdt
http://www.asser.nl/SportsLaw/Blog/post/will-the-world-cup-2022-expansion-mark-the-beginning-of-the-end-of-fifa-s-human-rights-journey-by-daniela-heerdt#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=c24ea369-23dd-4adc-8dc1-59ffee508f4fFri, 17 May 2019 14:05:00 +0200BlogInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=c24ea369-23dd-4adc-8dc1-59ffee508f4f0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=c24ea369-23dd-4adc-8dc1-59ffee508f4fhttp://www.asser.nl/SportsLaw/Blog/post/will-the-world-cup-2022-expansion-mark-the-beginning-of-the-end-of-fifa-s-human-rights-journey-by-daniela-heerdt#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=c24ea369-23dd-4adc-8dc1-59ffee508f4fHow Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret<p><b>Editor's Note</b>: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “<a href="https://www.springer.com/us/book/9789462650831">Evidence in Anti-Doping at the Intersection of Science &amp; Law</a>” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals. <br></p><p><br></p><p class="MsoNormal" align="justify">Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,<a href="#_ftn1" name="_ftnref1" title="">[1]</a>
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least. </p>
<p class="MsoNormal" align="justify">Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,<a href="#_ftn2" name="_ftnref2" title="">[2]</a>
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.<a href="#_ftn3" name="_ftnref3" title="">[3]</a>
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the <a href="https://www.admin.ch/opc/en/classified-compilation/19920153/index.html">Swiss
Data Protection Act</a> (‘DPA’) is <a href="https://www.edoeb.admin.ch/edoeb/fr/home/protection-des-donnees/dokumentation/revisions-de-la-loi-federale-sur-la-protection-des-donnees--lpd-.html">currently
under review</a>, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA <a href="https://www.wada-ama.org/en/resources/data-protection/international-standard-for-the-protection-of-privacy-and-personal">International
Standard for Privacy and the Protection of Personal Information</a> (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments. </p>
<p class="MsoNormal" align="justify">The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. </p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><b><u>Who
is who and who does what?</u></b></p>
<p class="MsoNormal" align="justify">It is hardly a scoop for those familiar
with the World Anti-Doping Program to state that its structures are complex, relying
on an intricate network of private entities as well as public (or quasi-public)
agencies, each subject to their own applicable laws. The World Anti-Doping
Program has always struggled with reconciling its objectives of global harmonisation
with the sovereignty and diversity of national laws. National Anti-Doping
Organisations (‘NADO’s) operate at the national level; they are in charge of
doping issues across all sports in one country and are endowed with more or
less extensive enforcement powers depending on their country’s regulatory
approach to the sport sector. By contrast, international federations claim exclusive
governance over one sport worldwide, uniformly and without regard to national
borders but have to do so with the instruments available to private entities
based on contractual or similar tools of private autonomy. </p>
<p class="MsoNormal" align="justify">Over time, the WADC has been repeatedly updated
to strike a balance between the two (national <i>versus</i> international) spheres and avoid positive or negative
conflicts of competence. Provisions seek to clarify attributions in areas where
international- and national-level competences collide, such as roles in
Therapeutic Use Exemption (‘TUE’) management, testing authority, or results
management responsibilities.<a href="#_ftn4" name="_ftnref4" title="">[4]</a>
Even as it is, there is no safeguard to prevent disputes from arising about the
proper authority to investigate and initiate proceedings for doping.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p>
<p class="MsoNormal" align="justify">Data processing activities are not exempted
from the difficulties that accompany the complexity of anti-doping. If anything,
these difficulties are rather exacerbated by data protection laws. In
particular, the GDPR seeks to create a framework within which data subjects can
easily recognise when data is being processed about them, by whom and to what
aim(s), and whom to turn to in order to exercise their rights. This forces
anti-doping organisations to be precise and unambiguous about their respective
roles and attributions among themselves and chiefly towards the data subjects,
the athletes subject to doping control.</p>
<p class="MsoNormal" align="justify">The GDPR draws a distinction between two
major categories of entities that process personal data: an entity can be
characterised either as a data ‘controller’, or as a data ‘processor’. A
controller is defined as an entity which “<i>alone
or jointly with others, determines the purposes and means of the processing of
personal data</i>”. A processor is an entity “<i>which processes personal data on behalf of</i>” a controller.<a href="#_ftn6" name="_ftnref6" title="">[6]</a>
</p>
<p class="MsoNormal" align="justify">The distinction may seem rather
straightforward at first sight: the controller has a personal or commercial interest
in the data processing and decides which data to collect, from whom, and
through what means. At the other end of the spectrum, a ‘typical’ processor
receives documented instructions from a controller and merely implements these
instructions with no autonomy of decision or an autonomy limited to technical issues
and logistics. However, interrelationships are often much more subtle in
reality with considerable room for borderline situations: multiple controllers may
need to agree on their (joint) controllership of the data while operating alongside
entities that may act in part as processors, in part as controllers of their
own right for different aspects of the data processing.<a href="#_ftn7" name="_ftnref7" title="">[7]</a></p>
<p class="MsoNormal" align="justify">In anti-doping, more than half a dozen
entities may be involved in a routine doping control activity, between test planning
and the outcome of a disciplinary process. All of these will either collect or
gain access to athlete data, including sensitive data, as illustrated by the
following: an international federation decides to conduct blood testing on an
athlete from its registered testing pool but delegates sample collection to the
NADO of the country in which the athlete is currently residing. To do so, the
NADO has access to the athlete’s whereabouts filings through the ADAMS database,
managed by the World Anti-Doping Agency (‘WADA’). The NADO itself carries out
sample collection through a private service provider with its dedicated blood
control officers and decides to use the opportunity to order, in addition, the
collection of urine samples from the athlete. Upon sampling, the athlete is
asked to fill in the doping control form in front of the doping control
personnel, which includes disclosing several ongoing medication courses in the
dedicated box. Samples are then transported, in a de-identified (‘coded’) form,
by private courier from the country of collection to the international
federation’s usual WADA-accredited laboratory in a different country. </p>
<p class="MsoNormal" align="justify">Assuming the laboratory reports an adverse
analytical finding in the blood sample, the international federation requests a
full documentation package from the laboratory and verifies whether a Therapeutic
Use Exemption on the record could be related to the adverse analytical finding.
Upon notification of the results and public announcement of the immediate
provisional suspension, the athlete requests the analysis of the B sample,
thereby <i>de facto</i> lifting the code on
the A sample where the laboratory is concerned. The athlete submits a series of
explanations regarding the possible causes for the adverse analytical finding, including
a report from his treating physician regarding a medical condition that might
account for the findings. The international federation may send the laboratory
documentation package and athlete explanations to external experts for
additional input and then hands over the file to its external anti-doping
tribunal members. Most data will at some point have to pass through the ADAMS
database and be stored within that database for up to ten years. However, it may
also be communicated by other (electronic or physical) means among anti-doping
organisations and their service providers and experts. </p>
<p class="MsoNormal" align="justify">Once the disciplinary decision is issued, its
main elements are publicly disclosed by the international federation on its
website, and the decision shared with WADA and any NADO having jurisdiction
over the athlete. The NADO further decides to send the negative urine sample
for long-term storage and possible reanalysis to the WADA-accredited laboratory
that provides its storage facilities.</p>
<p class="MsoNormal" align="justify">The above description represents an imaginary
but ultimately rather standard situation for anti-doping organisations. It does
not seem too far-fetched to identify that the international federation at the
very least acts as a controller of the athlete data processed. However, a NADO
who receives instructions to collect samples and also decides to collect
additional data (and additional biological materials) on its own and for its
own purposes, potentially acts as both a processor and controller depending on
the data at stake. A number of processors and sub-processors are involved in
the process as service providers, while the qualification of external experts
may have to be assessed on a case-by-case basis. WADA offers the ADAMS database
as an IT infrastructure for data storage and sharing for the international federation
and NADO but also uses the data to fulfil its own obligations and purposes
under the WADC, such as exercising its appeal rights or verifying compliance of
the anti-doping organisations with their duties. Arguably, at the very least
there will be three controllers of data (international federation, NADO, and
WADA) in addition to multiple processors and sub-processors. </p>
<p class="MsoNormal" align="justify">Characterising the role of each entity as a
‘controller’ or as a ‘processor’ is far from being of academic interest only. The
two types of entities have distinct responsibilities and requirements for
lawful processing. Appropriate contractual arrangements need to be set up among
the entities involved, and data subjects must be informed of these in a
comprehensible manner allowing them to exercise their rights. Controllers have
primary responsibility for dealing with data subject requests and responding to
supervisory authorities and have a more extensive scope of liability across the
entire scope of data processing. By contrast, processors are, in essence, only
liable for their own processing activities and merely undertake to support the
controllers in their obligations towards data subjects and authorities.<a href="#_ftn8" name="_ftnref8" title="">[8]</a></p>
<p class="MsoNormal" align="justify">There is one other important difference that
carries special significance in the context of anti-doping: a processor who
acts under instructions can rely on the processing contract with the controller
responsible for the data as a lawful basis for processing.<a href="#_ftn9" name="_ftnref9" title="">[9]</a>
By contrast, if two or more parties qualify as controllers in their own right,
each controller needs to secure its individual lawful basis with respect to the
data subjects. The requirement of lawful processing is entwined with the discussion
around the validity of ‘consent’ to anti-doping regulations.</p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><b><u>Lawful
basis and problematic character of consent</u></b></p>
<p class="MsoNormal" align="justify">Processing of personal data under the GDRP
requires a lawful basis. As relevant to our topic, three types of legitimising
grounds co-exist: i.) grounds rooted in private autonomy (consent or necessity
for performance of a contract with the data subject), ii.) grounds relying on
public interest or overriding interests of the controller (e.g. pursuing a
legal claim), or iii.) a specific basis in Union or national law, e.g. for
performance of a substantial public interest or public health task.<a href="#_ftn10" name="_ftnref10" title="">[10]</a>
Not all grounds enter into consideration for every category of data; special
categories of data – also known as ‘sensitive’ data under the DPA – have a more
limited number of valid processing grounds.<a href="#_ftn11" name="_ftnref11" title="">[11]</a>
Obviously, a major part of data processed as part of doping control qualifies
as sensitive data as it relates to health,<a href="#_ftn12" name="_ftnref12" title="">[12]</a>
including the data gathered through analysis of doping control samples or collected
as part of TUE applications.</p>
<p class="MsoNormal" align="justify">The traditional way for international
sports organisations to impose their rules on their ultimate addressees, i.e.,
the individual athletes, has been through contract, quasi-contractual chains of
submission, or other instruments involving a declaration of consent. The validity
of consent on the part of those who submit to anti-doping regulations is a
recurring matter for debate, in particular as its informed and voluntary
character is generally described at best as limited and more frequently as
purely illusory. The issue has been scrutinised in particular with respect to submission
to proceedings before the Court of Arbitration for Sport (‘CAS’),<a href="#_ftn13" name="_ftnref13" title="">[13]</a>
which the WADC imposes as a legal remedy in international doping disputes. While
acknowledging the ‘constrained’ nature of the athlete’s consent, the Swiss Supreme
Court accepts the validity of arbitration clauses in sports regulations in the
name of the needs for swift and competent resolution of sport disputes. It has,
however, imposed certain limits on the extent to which an athlete can entrust
their fate to the sports resolution system. As decided in the <i>Cañas v. ATP</i> case, an athlete cannot validly
waive in advance the right to challenge the CAS award in front of the Supreme
Court in disciplinary matters.<a href="#_ftn14" name="_ftnref14" title="">[14]</a>
In <i>Pechstein v. Switzerland</i>, the
European Court of Human Rights (‘ECtHR’) was asked to discuss the status of an
arbitration clause in the context of doping proceedings. It reached the same
conclusion that the only choice offered to the athlete was either to accept the
clause in order to be able to make a living by practising her sport at a
professional level or to refuse it and completely give up on practising at such
level. As a result of this restriction on the athlete’s professional life, it
was not possible to argue that she accepted the clause ‘in a free and unequivocal
manner’.<a href="#_ftn15" name="_ftnref15" title="">[15]</a></p>
<p class="MsoNormal" align="justify">In both cases, the findings were ultimately
of little consequence for the sports sector. The Swiss Supreme Court only
reviews CAS awards through an extremely narrow lens so that the power to set
strategic jurisprudence in sports matters remains with the CAS panels, whether
or not athletes retain their rights to challenge the award. Similarly, in the
Claudia Pechstein matter, the only shortcoming found in the ruling was the lack
of an option for a public hearing in CAS proceedings. Absence of genuine
consent has thus been – expressly or implicitly – compensated for by courts
through procedural safeguards, in an effort to ensure that athletes still
benefit overall from a system of justice broadly compliant with Article 6 of
the European Convention on Human Rights.</p>
<p class="MsoNormal" align="justify">Data protection issues create a greater
challenge here, since the GDPR explicitly requires consent to be ‘freely given’,
in addition to being informed.<a href="#_ftn16" name="_ftnref16" title="">[16]</a>
The same is true under the Swiss DPA.<a href="#_ftn17" name="_ftnref17" title="">[17]</a>
The GDPR does not accommodate compensatory mechanisms to account for the
‘fictional’ character of consent in the sports context: consent that is not
optional is not free, and consent that is not free is not valid. Importantly, free
consent also presupposes that consent can be withdrawn at any time as easily as
it was given and without significant detrimental consequences for the data
subject.<a href="#_ftn18" name="_ftnref18" title="">[18]</a> </p>
<p class="MsoNormal" align="justify">I will not delve here into how anti-doping
organisations can fulfil the requirement of ‘informed consent’, which as per
the GDPR requires “<i>intelligible and
easily accessible form, using clear and plain language</i>”.<a href="#_ftn19" name="_ftnref19" title="">[19]</a>
The template information notices (<a href="https://www.wada-ama.org/sites/default/files/resources/files/ADAMS_Athlete_Consent_Form_Doping_Control_Data_EN.pdf">here</a>
and <a href="https://www.wada-ama.org/sites/default/files/resources/files/dopingcontrolform_20181122_enfr.pdf">here</a>)
proposed by WADA currently in effect inform athletes, in essence, that their
data may be processed based on various legal grounds, may be accessed by
various entities around the world according to various data protections laws,
which may offer them various levels of protection, and that they may have
various rights and obligations under these laws. It is questionable whether explanations
in this form would satisfy the requirements for informed consent. Still, adequate
information appears at least achievable with appropriate and individualised
legal drafting supported by a data protection specialist. The question of free
consent is a much more delicate one since it is not in the hands of anti-doping
organisations to give athletes a genuine choice in this respect.</p>
<p class="MsoNormal" align="justify">In spite of the potential financial
implications, one could argue that consent is freely given where the athlete
can choose at any time to withdraw consent to data processing, with the sole
consequence of losing the benefit of the services attached to the ‘contractual’
relationship with their sports authorities, i.e. the right to participate in
sports competitions. This would, for example, suppose that an athlete notified
of a testing attempt could elect to either submit or instead declare immediate
retirement from sport without any further consequences. Under the current rules,
however, such withdrawal of consent would trigger disciplinary sanctions, which
may include ineligibility or fines depending on the sport, and in any event,
will have a significant impact on the athlete’s reputation. The templates
proposed by WADA explicitly warn athletes about these consequences, as well as
the fact that anti-doping organisations may retain and continue processing
their data in spite of any withdrawal (see <a href="https://www.wada-ama.org/sites/default/files/resources/files/dopingcontrolform_20181122_enfr.pdf">here</a>
and <a href="https://www.wada-ama.org/en/resources/adams/athlete-information-notice">here</a>).
In fact, the WADC provides that the results management and disciplinary process
may be initiated or may continue in spite of the athlete announcing their
retirement from sport.<a href="#_ftn20" name="_ftnref20" title="">[20]</a></p>
<p class="MsoNormal" align="justify">To this day, one is still awaiting a realistic
proposal that would allow consent to anti-doping regulations to be genuinely
freely given. Most stakeholders would agree that there is no viable manner of making
compliance with anti-doping rules optional for athletes without undermining the
very notion of a level playing field.<a href="#_ftn21" name="_ftnref21" title="">[21]</a>
Unlike the relatively benign implications that lack of genuine consent had for
the sport dispute resolution system so far, the impossibility of creating the prerequisites
for free consent to anti-doping regulations is far more consequential in the
data protection context. Indeed, it precludes reliance on consent as a reliable
lawful basis that can be used globally by international sports governing bodies
to secure the lawfulness of their data processing. This is the case unless
courts would be willing to go against the explicit wording of data protection
laws and tolerate ‘forced’ consent as a lawful basis in the context of sport.</p>
<p class="MsoNormal" align="justify">As the Swiss Federal Council noted in their
official communication on the Swiss Sport Act, the questionable validity of athlete
consent makes it necessary to create express legal provisions authorising
anti-doping organisations to collect and process personal data for anti-doping
purposes.<a href="#_ftn22" name="_ftnref22" title="">[22]</a> Under
the GDPR, processing sensitive data relying on an interest of substantial
public or public health interest equally requires a legal basis in EU or
relevant national law of a member state. Without intervention of national
lawmakers to recognise anti-doping as a matter of ‘substantial public interest’
or ‘public health’ interest and identify those entities that are entitled by
law to process data together with an appropriate description of the admissible scope
and purposes for such processing, sports organisations will continue to rest on
shaky ground when it comes to data processing and in particular processing of
sensitive data.</p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><b><u>Proportionality
of treatment</u></b></p>
<p class="MsoNormal" align="justify">The issue of proportionality is relevant for
almost any component of an anti-doping system. It is recognised by CAS panels
and courts as an internationally accepted standard,<a href="#_ftn23" name="_ftnref23" title="">[23]</a>
as part of the assessment for deciding whether an encroachment upon individual
freedoms is justifiable and justified in any given case. Proportionality is
frequently debated in connection with the severity of the disciplinary sanctions
set forth in the WADC,<a href="#_ftn24" name="_ftnref24" title="">[24]</a>
but it is also a test that every other aspect of the regulation must stand up
to.<a href="#_ftn25" name="_ftnref25" title="">[25]</a></p>
<p class="MsoNormal" align="justify">An important limb of the proportionality
test is the ‘necessity’ of a measure having regard to the rights affected. This
aspect was recently addressed by the European Court for Human Rights in the
context of French legislation on the whereabouts regime applicable to
professional athletes and its compatibility with privacy: “the general‑interest
considerations that make them necessary are particularly important and, in the
Court’s view, justify the restrictions on the applicants’ rights under Article
8 of the Convention. Reducing or removing the requirements of which the
applicants complain would be liable to increase the dangers of doping to their
health and that of the entire sporting community, and would run counter to the
European and international consensus on the need for unannounced testing.”<a href="#_ftn26" name="_ftnref26" title="">[26]</a> The ECtHR conducted its assessment with respect to the right
to privacy under Article 8 of the European Convention on Human Rights without
having regard to specific data protection provisions. </p>
<p class="MsoNormal" align="justify">The requirement of proportionality is a
pillar of data protection in all its aspects, from the decision to collect the
data to its retention. It is enshrined both in the GDPR and in the DPA<a href="#_ftn27" name="_ftnref27" title="">[27]</a>
and is notably also highlighted in the WADA ISPPPI.<a href="#_ftn28" name="_ftnref28" title="">[28]</a>
Concerns about proportionality of the anti-doping system were <a href="https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=629492">expressed</a>
by EU data protection advisory authorities as early as 2008,<a href="#_ftn29" name="_ftnref29" title="">[29]</a>
and numerous exchanges with WADA have ensued.<a href="#_ftn30" name="_ftnref30" title="">[30]</a>
Various adjustments have been made to the ISPPPI since then with a significant
review to adapt the ISPPPI to the GDPR requirements, and a new set of <a href="https://www.wada-ama.org/en/resources/legal/guidelines-privacy-protection-guidelines">WADA
Guidelines</a> adopted in 2018. </p>
<p class="MsoNormal" align="justify">Still, the threats on proportionality are
bound to be ubiquitous in a context where standardisation is a guiding
principle of regulation. For example, the ISPPPI (Annex A) enshrines retention
times based on different categories of data (TUE, samples, whereabouts, etc.), but
with only two different retention periods overall: 18 months (newly being
reconsidered in the draft revised version as 12 months) or 10 years. These have
been criticised again in the ongoing stakeholder <a href="https://www.wada-ama.org/sites/default/files/resources/files/ispppi_commentsreceived_04122018.pdf">consultation
process</a> as being insufficiently differentiated to be adequate.<a href="#_ftn31" name="_ftnref31" title="">[31]</a>
Indeed, while a column in the Annex formally indicates for each category that the
retention time has been chosen based on “<i>necessity</i>”
or “<i>proportionality</i>” criteria, Annex
A states <i>in limine</i> that the
limitation to two retention periods is “<i>for
practical reasons</i>”. These justifications cannot be easily reconciled. To
properly account for proportionality, anti-doping organisations would need to
conduct their own assessment in a more individualised fashion, adapted to their
athlete pool and sport. However, as in many other domains of doping control, one
wonders how many of them will have the resources, competences and willingness
to look beyond WADA prescriptions. Also, since most of the data must be
processed through the ADAMS database managed by WADA, anti-doping organisations
may have limited effective power over the set-up of the data deletion process.</p>
<p class="MsoNormal" align="justify">The proportionality principle is also connected
to another fundamental requirement, which is that data processing must remain
within the ‘purpose’ defined (‘purpose limitation’ principle). The ISPPPI
contains a list of purposes for which anti-doping organisations may process
data. However, the ISPPPI gives anti-doping organisations an option to decide
to process data for other purposes related to the fight against doping,
provided they carry out a documented assessment. The WADA Guidelines propose a
template for ‘new purpose assessment’, and indicate that such new purpose could
encompass purposes that were not contemplated in the WADC nor perhaps could
even be envisaged at the time of collection. The <a href="https://www.wada-ama.org/sites/default/files/resources/files/ispppi_redline_draft2.0_december2018.pdf">draft
revised ISPPPI</a> seems to go even further down this line: “<i>In certain contexts, it may be appropriate
or necessary for Anti-Doping Organizations/WADA to Process Personal Information
for additional purposes, […] besides those already permitted or required by the
Code, the International Standard or expressly required by law, in order to
engage effectively in the fight against doping</i>”.<a href="#_ftn32" name="_ftnref32" title="">[32]</a>
It is unclear how this assessment is to be effectively implemented especially
for sensitive data, be it under the assumption of a consensual basis or of one
based on national law recognising substantial public interests for anti-doping
activities. In both cases, if the actual purposes for which the data may be
used are <i>in limbo</i> awaiting potential
reassessment for ‘new’ purposes, it is questionable whether informed consent or
a sufficiently predictable legal basis respectively could even be created.<a href="#_ftn33" name="_ftnref33" title="">[33]</a></p>
<p class="MsoNormal" align="justify">As the claims for more ‘evidence-based’
approaches and stronger monitoring of anti-doping programs grow louder, more
thought could be spent on proportionality and purpose limitation of data
processing in anti-doping. Most of the discussion so far has revolved around
the intrusiveness of the whereabouts requirements. Whereabouts information,
however, is only collected from a limited number of high-profile athletes
(i.e., those included within a registered testing pool) and is only a fraction
of the data collected as part of anti-doping programs. In the
<i>FNASS et al. v. France</i> ruling, the
ECtHR essentially relied on the pleas of the anti-doping movement and
governments to find that the fight against doping pursues a public health
interest and implements it in a proportionate way. In doing so, the ECtHR seems to perpetuate a tendency of CAS and other
courts to take policy documents and consensus statements - whether enshrined or
not in international law instruments such as the UNESCO Convention against
Doping in Sport - as proof of the reality of the claims they contain<a href="#_ftn34" name="_ftnref34" title="">[34]</a>
without requiring much supporting evidence. In many instances, this is
technically justified by placing on the contesting party the burden of
demonstrating any lack of proportionality.<a href="#_ftn35" name="_ftnref35" title="">[35]</a>
On a higher level, however, it tends to create a presumption that any doubt
must benefit the cause of anti-doping.<a href="#_ftn36" name="_ftnref36" title="">[36]</a>
This may lead to self-perpetuating policy biases based on circular reasoning by
justifying new measures through previous, unverified claims.</p>
<p class="MsoNormal" align="justify">Data protection laws, with their detailed requirements
and descriptions of data subject rights, may offer a foundation for a more
granular analysis than general human rights provisions under the undetermined heading
of ‘privacy’. Opportunities for legal analysis may still be hindered by the
fact that an argument related to data protection is hard to build into a
defence when athletes – or their counsel – would typically start seriously
thinking about these issues only once they become subject to investigations or
discipline for a potential breach of the anti-doping rules. CAS panels have
been rather generous in admitting evidence unlawfully obtained against
individuals charged in disciplinary proceedings.<a href="#_ftn37" name="_ftnref37" title="">[37]</a>
It could thus prove extremely difficult – perhaps even counter-productive as a
defence strategy – for an athlete to object to the admissibility of doping
control data obtained in breach of data protection laws, in particular when the
objection relates to a breach that leaves as much discretion to the panel as
proportionality of data collection or retention. CAS panels have repeatedly
recognised the fight against doping as an interest that overrides individual
freedoms without carrying out much of an individualised balance of the
interests at stake. <a href="#_ftn38" name="_ftnref38" title="">[38]</a> &nbsp;More promising impetus could come from a
random athlete seeking advice from supervisory authorities through the avenues
offered by his or her national data protection laws prior to exposure to a
positive test or other disciplinary action. Unfortunately, much like consumers,
athletes often seem to show little interest in their privacy until they are
confronted with some tangible detrimental consequences.</p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><b><u>A
true plague or a real opportunity?</u></b></p>
<p class="MsoNormal" align="justify">Some may view recent developments in data
protection laws as just another headache for sports governing bodies and deplore
the advent of a new hurdle for anti-doping organisations who aspire to take
their tasks under the World Anti-Doping Program seriously. Anti-doping
organisations advocate that they are carrying out a mission of public interest.
As we have seen, this view has been supported by various bodies and courts
around the world and is also reflected in the UNESCO Convention against Doping
in Sport. However, the GDPR does not regard public interest as an absolute
basis for all data processing; in particular, sensitive data cannot be
processed on the sole basis of an alleged public interest unless such public
interest is substantial or related to public health, and its modalities are set
out in national or EU law. </p>
<p class="MsoNormal" align="justify">In a time where the credibility of existing
structures and procedures within anti-doping authorities is questioned, the
challenge arising from data protection standards can also be perceived as an
opportunity for the anti-doping system. The ISPPPI and related WADA Guidelines,
unfortunately, do not purport to provide solutions to the various crucial
challenge set out above but merely invite anti-doping organisations to act in
accordance with their applicable data protection laws. They give little guidance
on how this is to be achieved in the event that these laws conflict with their
duties under the WADC. </p>
<p class="MsoNormal" align="justify">Developments in data protection force
anti-doping organisations to look at their structures, legal status and their
relationships with other organisations within the system. These developments
should also have the effect of prompting national legislators to take measures
more supportive of anti-doping policies in this domain, and in particular by
making sure that sports governing bodies benefit from an appropriate legal
basis for processing data, including sensitive data. Given that the very
purpose of the WADC is to harmonise the regulation of doping in sport worldwide
and that this objective is routinely invoked to justify restrictions on athlete
rights, it would seem somewhat counterintuitive not to afford all athletes the
same level of protection where their data is concerned. If there is truly a
general international consensus on the legitimacy of the fight against doping
and this consensus is supported by the State parties to the UNESCO Convention, those
States, at a minimum, must be willing to give anti-doping organisations the
means to carry out their tasks in a legally sustainable manner, unless and
until these States are ready to engage in a fundamental overhaul of the current
system.</p>
<hr width="33%" size="1" align="justify">
<p id="ftn1" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679">Regulation
(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016</a>
on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data. The GDPR started to apply on 25 May
2018. In theory, all entities conducting data processing activities within the
scope of the GDPR ought to have secured compliance as of this effective date.</p>
<p align="justify"></p>
<p id="ftn2" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref2" name="_ftn2" title="">[2]</a> Recital 112 refers to requirements for cross-border data transfers
and provides: “Those derogations should in particular apply to data transfers
required and necessary […] for public health, for example […] in order to
reduce and/or eliminate doping in sport”.</p>
<p align="justify"></p>
<p id="ftn3" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref3" name="_ftn3" title="">[3]</a> Article 3 para. 2 of the GDPR regarding territorial scope of
application.</p>
<p align="justify"></p>
<p id="ftn4" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref4" name="_ftn4" title="">[4]</a> See Articles 4.4 of the WADC for TUEs, 5.2 for testing, and 7.1 for
results management.</p>
<p align="justify"></p>
<p id="ftn5" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref5" name="_ftn5" title="">[5]</a> See e.g. CAS <a href="https://www.usada.org/wp-content/uploads/CAS-Award-Bruyneel-Celaya-Marti.pdf">2014/A/3598,
3599 &amp; 3618</a>, in which the authority of USADA to initiate proceedings
against Johan Bruyneel and others was challenged. </p>
<p align="justify"></p>
<p id="ftn6" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref6" name="_ftn6" title="">[6]</a> Article 4 (Definitions) of the GDPR. Note that a processor within
the meaning of the GDPR may itself choose to delegate part of its activities to
a sub-processor, if and to the extent authorised by the controller.</p>
<p align="justify"></p>
<p id="ftn7" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref7" name="_ftn7" title="">[7]</a> See the <a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/controllers-and-processors/how-do-you-determine-whether-you-are-a-controller-or-processor/#2.">guidance
and examples</a> given by the UK Information Commissioner’s Office.</p>
<p align="justify"></p>
<p id="ftn8" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref8" name="_ftn8" title="">[8]</a> See Chapter IV of the GDPR.</p>
<p align="justify"></p>
<p id="ftn9" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref9" name="_ftn9" title="">[9]</a> Article 28 para. 3 of the GDPR.</p>
<p align="justify"></p>
<p id="ftn10" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref10" name="_ftn10" title="">[10]</a> Article 6 of the GDPR.</p>
<p align="justify"></p>
<p id="ftn11" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref11" name="_ftn11" title="">[11]</a> Article 9 of the GDPR.</p>
<p align="justify"></p>
<p id="ftn12" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref12" name="_ftn12" title="">[12]</a> Article 9 para. 1 of the GDPR; Article 3 lit. c of the DPA.</p>
<p align="justify"></p>
<p id="ftn13" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref13" name="_ftn13" title="">[13]</a> See e.g. Duval A (2017) <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2920555">Not in My
Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of
Arbitration for Sport</a>, Max Planck Institute for Comparative Public Law
&amp; International Law (MPIL) Research Paper No. 2017-01; Rigozzi A &amp;
Robert-Tissot F (2015) <a href="https://lk-k.com/wp-content/uploads/2015/10/RIGOZZI-ROBERT-TISSOT-in-ASA-Special-Series-41-Sports-Arb.-A-Coach-for-Other-Players-2015-Consent-in-Sports-Arb.-Its-Multiple-Aspects-pp.-59-94.pdf">"Consent"
in Sports Arbitration: Its Multiple Aspects</a>. In: Geisinger &amp;
Trabaldo-De Mestral (eds) Sports Arbitration: A Coach for Other Players? ASA
Series 41, Jurisnet NY, pp 59-95;</p>
<p align="justify"></p>
<p id="ftn14" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref14" name="_ftn14" title="">[14]</a> Swiss Supreme Court Decision, <a href="https://law.marquette.edu/assets/sports-law/pdf/2012-conf-canas-english.pdf">4P.172/2006</a>,
22 March 2007. </p>
<p align="justify"></p>
<p id="ftn15" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref15" name="_ftn15" title="">[15]</a> ECtHR Decision 22 October 2018, <i>Mutu
&amp; Pechstein v. Switzerland</i>, no 40575/10 et 67474/10, para. 114.</p>
<p align="justify"></p>
<p id="ftn16" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref16" name="_ftn16" title="">[16]</a> Article 4 (Definitions) of the GDPR.</p>
<p align="justify"></p>
<p id="ftn17" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref17" name="_ftn17" title="">[17]</a> Article 4 para. 5 of the DPA.</p>
<p align="justify"></p>
<p id="ftn18" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref18" name="_ftn18" title="">[18]</a> Article 7 para. 3 of the GDPR.</p>
<p align="justify"></p>
<p id="ftn19" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref19" name="_ftn19" title="">[19]</a> Article 7 para. 2 of the GDPR.</p>
<p align="justify"></p>
<p id="ftn20" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref20" name="_ftn20" title="">[20]</a> Article 7.11 of the WADC.</p>
<p align="justify"></p>
<p id="ftn21" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref21" name="_ftn21" title="">[21]</a> Though it is often debated to what extent exactly the performance
enhancing effect of individual prohibited substances and methods is
established. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6422964/">Heuberger
J, Cohen A (2018) Review of WADA Prohibited Substances: Limited Evidence for
Performance-Enhancing Effects. Sports
Med. 2019; 49(4): 525–539</a>.</p>
<p align="justify"></p>
<p id="ftn22" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref22" name="_ftn22" title="">[22]</a> <a href="https://www.admin.ch/opc/fr/federal-gazette/2009/7401.pdf">Message du Conseil fédéral du 11
nov. 2009, FF 09.082</a>, pp 7450/7451&nbsp;: «&nbsp;Aujourd’hui, les contrôles antidopage
relevant du sport de droit privé reposent sur une déclaration de consentement
du sportif. Cette déclaration doit être librement consentie. Or, cette liberté
n’est pas garantie, dans la mesure où le refus de donner son consentement peut
entraîner l’exclusion de la manifestation ou la perte de la licence&nbsp;».</p>
<p align="justify"></p>
<p id="ftn23" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref23" name="_ftn23" title="">[23]</a> CAS 2005/C/976 &amp; 986, <i>FIFA &amp; WADA</i>, para. 138&nbsp;; CJEU decision <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62004CJ0519"><i>Meca-Medina
&amp; Majcen v. Commission</i></a> (C-519/04).</p>
<p align="justify"></p>
<p id="ftn24" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref24" name="_ftn24" title="">[24]</a> A recent example: CAS 2018/A/5546, <i>Guerrero v. FIFA</i>, CAS 2018/A/5571, <i>WADA v. FIFA &amp; Guerrero</i>, paras 85 <i>et seq</i>.; <a href="https://www.wada-ama.org/sites/default/files/resources/files/WADC-Legal-Opinion-on-Draft-2015-Code-3.0-EN.pdf">Legal
Opinion</a> by Jean-Paul Costa on the 2015 revision of the WADC.</p>
<p align="justify"></p>
<p id="ftn25" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref25" name="_ftn25" title="">[25]</a> Viret (2016), Evidence in Anti-Doping at the Intersection of
Science &amp; Law, T.M.C Asser, p. 133; Since its 2015 version, the WADC has
included an explicit reference to proportionality as one of the key
considerations underlying its drafting. See introductory section “Purpose,
Scope and Organization of the World Anti-Doping Program and the Code”.</p>
<p align="justify"></p>
<p id="ftn26" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref26" name="_ftn26" title="">[26]</a>ECtHR, FNASS et al. v. France (48151/11 and 77769/13), para. 191.</p>
<p align="justify"></p>
<p id="ftn27" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref27" name="_ftn27" title="">[27]</a> Article 5(1)(c) of the GDPR, whereas the data must be “adequate,
relevant and limited to what is necessary in relation to the purposes for which
they are processed (‘data minimisation’)”.</p>
<p align="justify"></p>
<p id="ftn28" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref28" name="_ftn28" title="">[28]</a> Section 5.0 ISPPI “Processing Relevant and Proportionate Personal
Information”.</p>
<p align="justify"></p>
<p id="ftn29" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref29" name="_ftn29" title="">[29]</a> Art. 29 Working Party, now replaced by the European Data Protection
Board under the GDPR. </p>
<p align="justify"></p>
<p id="ftn30" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref30" name="_ftn30" title="">[30]</a> See <a href="https://www.wada-ama.org/en/resources/search?f%5B0%5D=field_topic%3A126">collection
of legal documents</a> on WADA website.</p>
<p align="justify"></p>
<p id="ftn31" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref31" name="_ftn31" title="">[31]</a> Comment to revised ISPPPI by NADA Germany, ad Annex Retention
Times.</p>
<p align="justify"></p>
<p id="ftn32" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref32" name="_ftn32" title="">[32]</a> Comment ad Article 5.3(d) draft ISPPPI.</p>
<p align="justify"></p>
<p id="ftn33" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref33" name="_ftn33" title="">[33]</a> The EU Commission <a href="https://ec.europa.eu/info/law/law-topic/data-protection/reform/rules-business-and-organisations/principles-gdpr/purpose-data-processing/can-we-use-data-another-purpose_en">warns</a>
that extension of purpose is not possible where processing was based on consent
or a provision of law without renewing the consent or creating a new legal
basis.</p>
<p align="justify"></p>
<p id="ftn34" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref34" name="_ftn34" title="">[34]</a> See e.g. preamble of the UNESCO Convention “Concerned by the use of
doping by athletes in sport and the consequences thereof for their health, the
principle of fair play, the elimination of cheating and the future of sport”.</p>
<p align="justify"></p>
<p id="ftn35" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref35" name="_ftn35" title="">[35]</a> See already in CJEU decision <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62004CJ0519"><i>Meca-Medina &amp; Majcen v. Commission</i></a>
(C-519/04) regarding the proportionality of threshold levels.</p>
<p align="justify"></p>
<p id="ftn36" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref36" name="_ftn36" title="">[36]</a> <a href="https://tel.archives-ouvertes.fr/CRJ-EA14/hal-01767063v1">Maisonneuve Mathieu, La CEDH et les
obligations de localisation des sportifs&nbsp;: le doute profite à la
conventionnalité de la lutte contre le dopage</a>, note sous CEDH, 5<sup>e</sup>
sect., 18 January 2018, Fédération nationale des associations et des syndicats
sportifs (FNASS) et autres c. France, req. Nos 48151/11 et 77769/13. Journal
d’actualité des droits européenes, Centre de recherches et de documentation
européennes et internationales, 2018.</p>
<p align="justify"></p>
<p id="ftn37" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref37" name="_ftn37" title="">[37]</a> CAS 2016/A/4487, <i>IAAF v. Melnikov</i>, para. 108.</p>
<p align="justify"></p>
<p id="ftn38" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref38" name="_ftn38" title="">[38]</a> CAS 2009/A/1879, <i>Valverde v. CONI</i>, para. 139.</p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/how-data-protection-crystallises-key-legal-challenges-in-anti-doping-by-marjolaine-viret
http://www.asser.nl/SportsLaw/Blog/post/how-data-protection-crystallises-key-legal-challenges-in-anti-doping-by-marjolaine-viret#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=7b3edef8-689b-4326-a1a4-ec6ea1c2ad4bTue, 07 May 2019 15:05:00 +0200BlogInternational Sports Law CommentariesInternational Sports Law PublicationsAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=7b3edef8-689b-4326-a1a4-ec6ea1c2ad4b0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=7b3edef8-689b-4326-a1a4-ec6ea1c2ad4bhttp://www.asser.nl/SportsLaw/Blog/post/how-data-protection-crystallises-key-legal-challenges-in-anti-doping-by-marjolaine-viret#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=7b3edef8-689b-4326-a1a4-ec6ea1c2ad4bWhat happens in Switzerland stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals
<p class="MsoNormal" align="justify">In the last five years, the Striani
case has been the main sword of Damocles hanging over UEFA’s Financial Fair
Play Regulations. At the very least, the only real judicial threat they have
faced (apart from the relatively harmless challenge mounted in the <a href="https://www.uefa.com/MultimediaFiles/Download/uefaorg/CASdecisions/02/42/66/95/2426695_DOWNLOAD.pdf">Galatasaray case</a> at the CAS). Indeed, a Belgian
player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis
Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s
CL&amp;FFP Regulations with EU law. Striani lodged a complaint with the
European Commission (which was quickly <a>rejected</a> in October 2014) and initiated a private
action for damages before the Brussels Court of First Instance. The latter
deemed itself not competent to decide on the matter, but nevertheless accepted to
order a provisory stay of the enforcement of the UEFA FFP Regulations pending a
preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s
blog on the case <a href="https://www.asser.nl/SportsLaw/Blog/post/the-brussels-court-judgment-on-financial-fair-play-a-futile-attempt-to-pull-off-a-bosman-by-ben-van-rompuy">here</a>). The CJEU unsurprisingly <a href="https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A62015CO0299">rejected</a> to enter into the matter, but UEFA and Striani
decided to appeal the first instance ruling to the Court of Appeal, which
rendered its decision on 11 April. It is unclear at this stage whether Striani
will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil
Court), however this would entail considerable risks and costs and his lawyers
to date have not indicated that they would do so (see <a href="https://www.dhnet.be/sports/football/la-cour-d-appel-se-declare-incompetente-pour-examiner-la-legalite-du-fair-play-financier-5cb0bb069978e2633399c2dc">here</a>).&nbsp;
</p><p class="MsoNormal" align="justify">While the ruling of the Court of
Appeal does not touch upon the much-discussed question of the compatibility of
UEFA’s FFP Regulations with EU law (see our many blogs on the question <a href="https://www.asser.nl/SportsLaw/Blog/post/the-evolution-of-uefa-s-financial-fair-play-rules-part-1-background-and-eu-law-by-christopher-flanagan">here</a>, <a href="https://www.asser.nl/SportsLaw/Blog/post/the-proportionality-test-under-art-101-1-tfeu-and-the-legitimacy-of-uefa-financial-fair-play-regulations">here</a> and <a href="https://www.asser.nl/SportsLaw/Blog/post/the-evolution-of-uefa-s-financial-fair-play-rules-part-2-the-legal-challenges-by-christopher-flanagan">here</a>), it remains an interesting decision to
discuss broader questions related to the procedural ease in challenging
regulatory decisions passed by sports governing bodies (SGBs) based in
Switzerland. Competition law constitutes the main legal tool available to
sports stakeholders looking to challenge existing regulatory arrangements from
the outside (e.g. not going through the internal political systems of the SGBs
or the CAS route). Recent cases, such as the <a href="http://ec.europa.eu/competition/antitrust/cases/dec_docs/40208/40208_1384_5.pdf">ISU decision</a> of the European Commission, the <a href="https://link.springer.com/chapter/10.1007/978-94-6265-088-6_11">Pechstein case</a> in front of the German courts or
the <a href="https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2019/27_02_2019_DOSB_IOC.html">Rule 40 decision</a> of the German competition
authority, have demonstrated the potency of competition law to question the
legality of the rules and decisions of the SGBs.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>
In this regard, the decision of the Brussels Court of Appeal narrows the range
of parties allowed to challenge in European courts the SGBs’ rules and
decisions on the basis of competition law. </p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoListParagraph" align="justify"><b><i>I.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i><u>A Strict Interpretation of Article 5(3) of the Lugano Convention</u></i></b>&nbsp;
</p><p class="MsoNormal" align="justify">Striani, supported by a number of fans
based in France and the UK (presumably PSG and Manchester City supporters), was
challenging the UEFA FFP rules for their indirect effects. In short, the core
claim was that the FFP Regulations, by curtailing the ability of clubs to
invest on the transfer market, had the effect of depriving Striani from the
chance to earn more money for his services as an intermediary and the fans from
a chance to see better players join their favorite team and therefore improve
the quality of the team’s performance. Undoubtedly, these effects were not
primary objectives of the FFP rules, which were aimed at constraining the ability
of clubs to invest at a loss. Moreover, the rules were only constraining clubs
qualified to the European competitions. The question from the point of view of
private international law, was whether Striani and the fans could rely on
Article 5(3) <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A22007A1221%2803%29">Lugano Convention</a> to sue UEFA in front of the the Belgian
courts.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>
</p>
<p class="MsoNormal" align="justify">The Court of Appeal acknowledged
that in this case it was dealing with an action in liability for a breach of
competition law but sided with UEFA in considering that the hypothetical damage
suffered by the claimants in Belgium was too indirect for it to be competent. It
came to this conclusion after a journey through well-known European private
international law judgments, such as <a href="http://curia.europa.eu/juris/liste.jsf?&amp;num=21/76">Mines de Potasse d’Alsace</a>, <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61988CJ0220">Dumez France</a> or <a href="https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A61993CJ0068">Shevill</a>, and other less known (mainly French and
Belgian) judgments in cases involving Swiss-based SGBs.<a href="#_ftn3" name="_ftnref3" title="">[3]</a>
In the present case, it noted that «&nbsp;the challenged UEFA Regulation does
not prohibit M. Striani and MAD Management […] from exercising the activity of
an intermediary in Belgium or abroad, nor does it regulate the conditions in
which this activity is to be exercised&nbsp;».<a href="#_ftn4" name="_ftnref4" title="">[4]</a>
Moreover, the targeted provisions «&nbsp;do not prohibit the relevant clubs from
having recourse to agents […] nor do they limit this activity&nbsp;».<a href="#_ftn5" name="_ftnref5" title="">[5]</a>
In fact, the prejudice alleged by Striani and MAD Management «&nbsp;is only an
indirect consequence of the adoption of the challenged UEFA Regulation&nbsp;»,
as «&nbsp;it is not related directly to the activity of the claimants and does
not have direct consequences on this activity in Belgium or abroad&nbsp;».<a href="#_ftn6" name="_ftnref6" title="">[6]</a>
Thus, the Court decided that jurisdictions of the seat of UEFA (the Swiss courts)
are sole competent to hear the matter. </p>
<p class="MsoNormal" align="justify">This conclusion is not surprising. It
was also the one reached by the first instance court, which however still decided
quite surprisingly to send a preliminary reference to the CJEU and to order a
stay in the enforcement of the UEFA FFP Regulations (the latter move was
condemned by the Court of Appeal). Yet, it carries implications in the context
of transnational sports regulation. Indeed, this is a domain in which the
consumers (e.g. fans) are heavily impacted by decisions taken by international SGBs
located mainly in Switzerland. The regulatory decisions of these bodies have
undoubtedly structural effects on the way a particular sport is experienced by
the fans. Moreover, due to the monopoly positions of the SGBs over their sports,
these decisions are rarely challenged by competitors (such as the <a href="https://www.insidethegames.biz/articles/1076461/international-swimming-league-to-have-first-year-budget-of-20-million">International Swimming League</a>). They often bind the fans and
determine the quality of the competitions they are watching and are doing so
without providing them any type of say in the regulatory process. Sure, fans
(or agents) will still be able to sue the SGBs in Swiss courts, but those have
proven extremely ‘benevolent’ vis-à-vis the SGBs and are unlikely to apply EU
competition law. In short, the Belgium court has consolidated the exclusion of actors
indirectly affected by the decisions of the SGBs from European courts. What
happens in Switzerland stays in Switzerland…</p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoListParagraph" align="justify"><i>II.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</i><b><i><u>The irresponsibility of the URBSFA for UEFA’s decisions </u></i></b><i><u></u></i></p>
<p class="MsoNormal" align="justify">The second strategy used by
Striani’s lawyers to anchor the dispute in Belgium was their attempt to involve
the Belgium football federation, URBSFA, in the case. Indeed, as the URBSFA is
seated in Belgium, there is no issue with regard to the competence of the
Belgium courts in its regard. However, here the problem arises in connection to
the URBSFA’s causal contribution to the adoption and enforcement of the
challenged UEFA FFP Regulations. Indeed, the court held that&nbsp;«&nbsp;the
fact that URBSFA is a member of UEFA does not turn it into a co-author of the
regulations; the reasoning of the claimants ignores the separate legal
personality of UEFA&nbsp;».<a href="#_ftn7" name="_ftnref7" title="">[7]</a>
The claimants were also alleging that the URBSFA was contributing to the
enforcement of the FIFA rules, yet the court finds that they are
«&nbsp;confusing the licensing role conferred to the national federations […]
with the specific rules regarding the financial balance of clubs enshrined in
Articles 57 to 63 of the attacked regulations&nbsp;».<a href="#_ftn8" name="_ftnref8" title="">[8]</a>
In fact, the «&nbsp;federal regulations of the URBSFA do not impose any
constraints, or sanctions, with regard to the challenged break-even rules;
these are of the sole competence of UEFA.&nbsp;»<a href="#_ftn9" name="_ftnref9" title="">[9]</a>
Hence, the court concludes that no particular wrongful conduct can be
attributed to the URBSFA linked to the harm alleged by the claimants. </p>
<p class="MsoNormal" align="justify">By doing so, the Court of Appeal holds
onto the formalist idea of the separate corporate personalities and brushes
over the fact that national federations are at least politically co-responsible
for the policies adopted, e.g. they hold the voting power inside the international
federations. In this context, invoking the corporate veil might let national
federations too easily off the hook, even though it is certainly true that a
single national federation does not have a decisive voting power or influence
inside an international SGB. Here, there is an interesting parallel with the
functioning of the European Union itself, as it seems that decisions taken by
UEFA (not unlike the EU’s) are not politically (or in this case legally) attributable
to the individual member associations (the famous blame Brussels culture). The
idea of a joint action between national and international federations leading
to the exercise of collective power might be more suitable to capture the
transnational regulatory dynamics at play in sports and could lead to some form
of joint liability. In any event, this part of the decision highlights another
difficulty in anchoring a case outside of Switzerland, as national federations will
often be deemed an inadequate defendant due to their relatively passive role in
the adoption and enforcement of the regulations of the international SGBs. <br></p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="justify"><b>Conclusion </b></p>
<p class="MsoNormal" align="justify">Striani’s crusade against UEFA’s FFP
Regulations came to a strange end. While legal scholars and practitioners have
been discussing at length whether FFP can be deemed compatible with EU law or
not (I’ve spoken in favor of compatibility under certain circumstances, but many
others have disputed it), the much-awaited ruling did not even touch upon this
question. Indeed, the Brussels Court of Appeal simply denied its competence to
hear the matter and sentenced the claimants to pay quite high legal fees to
UEFA. By doing so, it did not simply put an end to a case that felt quite
artificial and which might have been a pawn in a wider game between UEFA and
some powerful clubs, it also closed the door on a variety of stakeholders willing
to challenge the rules and decisions of SGBs outside of Switzerland. Indeed, if
this interpretation of the Lugano Convention were to stand, it would for
example exclude fans from being able to launch liability claims, on their home
judicial turf, against international SGBs for the damage inflicted to their
clubs.</p>
<p class="MsoNormal" align="justify">Besides those directly impacted, in
the case of FFP primarily the clubs (would the players be sufficiently directly
affected? Maybe, maybe not), those that wish to challenge the rules and
decisions of the SGBs are condemned to turn to the Swiss courts, which are
rather well-known for their deference to the wide regulatory autonomy of international
SGBs. In short, what happens in Switzerland (e.g. the adoption and enforcement
of the SGBs’ regulations) is to stay judicially in Switzerland. This will be a reassuring
news for the network of Swiss private associations that rule over international
sports as it will reduce the risk of facing civil litigation outside of their well-chartered
home turf. In fact, it is extremely rare for those directly affected (e.g. the
clubs and athletes) to be ready to go to court to challenge them. As evidenced
by the case of Bosman or Pechstein, the short-term costs in doing so are
disproportionately high (boycott and career-end for the former, bankruptcy for
the latter) while the chances of success remain quite limited. Similarly, a
football club is unlikely to take the risk of going against UEFA or FIFA,
unless it has nothing left to lose (e.g. like SV Wilhelmshaven). In sum, even
if I believe UEFA’s FFP rules could be allowed to stand under EU law, this
ruling sheltered UEFA from having to deal with this question, at least for the
time being.</p><hr width="33%" size="1" align="justify">
<p id="ftn1" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref1" name="_ftn1" title="">[1]</a>
In general, see B. Van Rompuy, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2767467">The Role of
EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations,</a>
<i>Maastricht Journal of European and
Comparative Law</i> (2015), vol. 22, nr. 2</p>
<p align="justify"></p>
<p id="ftn2" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref2" name="_ftn2" title="">[2]</a>
Article 5(3) Lugano Convention provides that:&nbsp;A person domiciled in a
State bound by this Convention may, in another State bound by this Convention,
be sued in matters relating to tort, delict or quasi-delict, in the courts for
the place where the harmful event occurred or may occur.</p>
<p align="justify"></p>
<p id="ftn3" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref3" name="_ftn3" title="">[3]</a>
See the judgments cited in Cour d’appel Bruxelles, UEFA c. Striani &amp; co, 11
avril 2019, 2015/AR/1282, paras 40 &amp; 41.</p>
<p align="justify"></p>
<p id="ftn4" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref4" name="_ftn4" title="">[4]</a>
«&nbsp;En effet, le Règlement UEFA critiqué n'interdit pas à M. Striani et à
MAD Management, qui se présentent comme agent de joueurs de football en
Belgique (le premier comme personne physique et la seconde étant la société à
travers laquelle le premier exerce son activité), d'exercer cette activité
d'agent, en Belgique ou à l'étranger ni ne règle les conditions d'exercice de
cette activité.&nbsp;» Ibid, para. 42.</p>
<p align="justify"></p>
<p id="ftn5" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref5" name="_ftn5" title="">[5]</a>
«&nbsp;Par ailleurs, ces dispositions ne font nullement interdiction aux clubs
concernés de recourir aux services d'agents, tels les demandeurs originaires, ni
ne limitent cette activité. Ibid.</p>
<p align="justify"></p>
<p id="ftn6" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref6" name="_ftn6" title="">[6]</a>
«&nbsp;ll découle de ce qui précède que, sans préjuger de la matérialité du
dommage invoqué par M.Striani et MAD Management, ce dommage, à le supposer
établi, n'est qu'une suite indirecte du l'adoption du Règlement UEFA querellé.
Le Règlement querellé ne concerne pas directement l'activité des demandeurs
originaires et n'a pas de conséquence directe sur cette activité, en Belgique
ou ailleurs.&nbsp;» Ibid.</p>
<p align="justify"></p>
<p id="ftn7" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref7" name="_ftn7" title="">[7]</a>
«&nbsp;L’URBSFA n'est pas l'auteur des règles d'équilibre financier prévues au
Règlement UEFA. Le seul fait que I'URBSFA soit membre de l'UEFA ne la rend pas
co-auteur du Règlement; le raisonnement des intimés fait fi de la personnalité
juridique distincte de l'UEFA.&nbsp;» Ibid, para. 48.</p>
<p align="justify"></p>
<p id="ftn8" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref8" name="_ftn8" title="">[8]</a>
«&nbsp;Ce faisant, les intimés entretiennent la confusion entre le rôle dévolu
aux fédérations nationales pour l'octroi des licences, non critiqué en tant que
tel, et les règles particulières concernant l'équilibre financier, prévues aux
articles 57 à 63 du Règlement querellé.&nbsp;» Ibid.</p>
<p align="justify"></p>
<p id="ftn9" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref9" name="_ftn9" title="">[9]</a>
«&nbsp;Le Règlement fédéral de l'URBSFA ne comporte dès lors pas d'exigence, ni
de sanction, concernant les règles d'équilibre financier querellée; celles-ci
sont uniquement du ressort de l'UEFA.&nbsp;» Ibid. </p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/what-happens-in-switzerland-stays-in-switzerland-the-striani-judgment-of-the-brussels-court-of-appeals
http://www.asser.nl/SportsLaw/Blog/post/what-happens-in-switzerland-stays-in-switzerland-the-striani-judgment-of-the-brussels-court-of-appeals#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=4b439dde-f8fc-4f98-aac3-1c18e9ab38c1Tue, 30 Apr 2019 16:04:00 +0200BlogInternational Sports Law CasesInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=4b439dde-f8fc-4f98-aac3-1c18e9ab38c10http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=4b439dde-f8fc-4f98-aac3-1c18e9ab38c1http://www.asser.nl/SportsLaw/Blog/post/what-happens-in-switzerland-stays-in-switzerland-the-striani-judgment-of-the-brussels-court-of-appeals#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=4b439dde-f8fc-4f98-aac3-1c18e9ab38c1A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)<p align="justify"><i><b>Editor's note</b>: </i><i>Daniela Heerdt is a PhD candidate at Tilburg
Law School in the Netherlands and works as Research Officer for the </i><a href="https://www.sporthumanrights.org/"><i>Centre for Sports and
Human Rights</i></a><i>. Her PhD research deals with the
establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games. She published an </i><a href="https://link.springer.com/article/10.1007/s40318-018-0129-8"><i>article in the International Sports Law Journal</i></a><i> that discusses to what extent the revised bidding and hosting
regulations by FIFA, the IOC and UEFA strengthen access to remedy for
mega-sporting events-related human rights violations.</i></p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoNormal" align="justify">On November
26<sup>th</sup>, the Human Rights Advisory Board<a href="#_ftn1" name="_ftnref1" title="">[1]</a>
of the Fédération Internationale de Football Association (FIFA) published its <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a>. This blog provides a summary and brief
evaluation of the report, by drawing a comparison to the <a href="https://resources.fifa.com/mm/document/affederation/footballgovernance/02/91/92/38/fifahumanrightsenweb_neutral.pdf">previous report</a> issued by the Human Rights Advisory
Board (hereinafter: the Board) based on the content of the recommendations and
FIFA’s efforts to implement the Board’s recommendations. The third part of this
blog briefly reflects on the broader implications of some of the new
recommendations issued for FIFA’s internal policies. The conclusion provides
five more general points of observation on the report. </p><p class="MsoNormal" align="justify"><br></p>
<h4 align="justify">Old and New
Recommendations</h4>
<p class="MsoNormal" align="justify">In its
second report, the Board makes 30 ‘specific recommendations’ to FIFA, just
slightly less than the previous one. However, not all of these recommendations
are new to FIFA. A number of them have been released in the two update
statements the Board released since the publication of its first report, one in
<a href="https://www.business-humanrights.org/sites/default/files/documents/AB%20Update%20Statement_May%202018_Final.pdf">May 2018</a> and one in <a href="https://www.business-humanrights.org/sites/default/files/documents/AB%20Statement_Fourth%20meeting_Oct2018.pdf">October 2018</a>. Two more sets of recommendations were
communicated to FIFA in December 2017 and February 2018, which are as well
included in this new report, but which have not been reported publicly before. </p><p align="justify">Content-wise, most of the
recommendations still deal with the human rights risks associated with FIFA’s
upcoming and past events. The recommendations made with regard to the human
rights issues surrounding the 2018 World Cup hosted by Russia have been issued
in December 2017 and concern the general situation and human rights of
construction workers, human rights defenders and media representatives, mostly
recommending that FIFA should use its leverage to address these issues with the
government or other relevant stakeholders, such as the Local Organizing
Committee (LOC). Another December-recommendation concerned the sharing of
measures taken by FIFA to investigate the involvement of Russia football
players in the Russian doping scandal. Furthermore, the report includes the
Board’s recommendations <a>regarding the controversies surrounding </a><a href="https://www.hrw.org/news/2018/02/14/chechnya-host-world-cup-finalist-team">the choice of accommodation of the Egyptian national team</a><a href="#_ftn2" name="_ftnref2" title="">[2]</a>, which had been addressed in a set of recommendations initially issued
in February 2018<a class="msocomanchor" id="_anchor_1" href="#_msocom_1" name="_msoanchor_1">[AD1]</a>&nbsp;. With regard to the human rights
requirements for hosting the 2026 FIFA World Cup, the report repeats the
recommendation issued in May 2018, concerning FIFA’s task to take into account
the capacity of bidders to assess and manage human rights risks when deciding
for a host. On this issue, the report also introduces a new recommendation for
FIFA to reflect on the inclusion of human rights into the bidding requirements.
Furthermore, the report also includes ‘interim recommendations’ in relation to
the FIFA World Cup 2022 in Qatar, and disclosed that a more detailed set of
recommendations can be expected shortly.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p>
<p class="MsoNormal" align="justify">While these
issues were already present in the first report, four new issues have been
added in this second report by the Board: </p>
<p align="justify"></p><ul><li>player’s rights, </li><li>child safeguarding, </li><li>the ban on woman attending sport
matches in Iran, </li><li>and FIFA’s approach to engagement
and communication on human rights.<a href="#_ftn4" name="_ftnref4" title="">[4]</a>
</li></ul><p></p>
<p class="MsoNormal" align="justify">With regard
to player’s rights, the Board’s recommendations focus on access to remedy and FIFA’s
evaluation of existing football arbitration mechanisms from a human rights
perspective, the rules of the employment market for players and FIFA’s review
of these rules, and on FIFA’s regulations on player’s rights which need to take
the specific situation of children into account. Concerning child safeguarding,
the Board recommends that FIFA’s safeguarding working group should conduct a
comprehensive stakeholder consultation to identify the responsibilities of
member associations concerning child players. Regarding the issue of
discrimination against women in Iran, the Board recommends for FIFA to use its
leverage on the Iranian Association and to issue sanctions if nothing is
changing. Finally, on FIFA’s approach to engagement and communication on human
rights issues, the Board recommends that FIFA establishes a systematic annual
dialogue with key stakeholders, in addition to individual and event-specific
stakeholder engagement and that it adopts a transparent approach on negative
impacts connected to FIFA’s activities. Furthermore, the Board calls on FIFA to
communicate this approach and share relevant information with confederations
and member associations.</p>
<p class="MsoNormal" align="justify">What also changed in the second report is that
the Board does not issue requests to FIFA anymore. All measures proposed are
formulated as recommendations. However, it is questionable to what extent the
requests entailed in the first report really made a difference, since the
majority of these requests were merely inquiries for more information or
clarifications on certain issues.<a href="#_ftn5" name="_ftnref5" title="">[5]</a>
Such requests about additional information or more transparency on certain
issues are now included in the recommendations, such as in recommendation R42,
asking FIFA to “be as transparent as possible” and to “proactively publish the
steps it has taken”.<a href="#_ftn6" name="_ftnref6" title="">[6]</a>&nbsp; <br></p><p class="MsoNormal" align="justify"><br></p><h4 align="justify">The New Tracking System</h4>
<p class="MsoNormal" align="justify">The second
report of FIFA’s Human Rights Advisory Board is not only longer in terms of
page numbers&nbsp; but it also provides more
detailed insights into human rights-related efforts FIFA undertook in the past
year and continues to undertake, based on the recommendations it received. While
in the first report, ‘part B’ consisted of a general overview of FIFA’s human
rights efforts up to that point in time, ‘part B’ in the new report lists
concrete measures taken by FIFA in reaction to the recommendations issued by
the Board in its first report and other recommendations statements made in the
past year. To assess these measures, the second report introduces a tracking
system, which ranks the status of FIFA’s implementation of the Board’s
recommendations from 1 to 4, moving from no implementation <i>(1)</i>, to ongoing implementation <i>(2)</i>,
to advanced implementation <i>(3)</i>, and
to full or “closed out” implementation <i>(4)</i>.<a href="#_ftn7" name="_ftnref7" title="">[7]</a>
</p>
<p class="MsoNormal" align="justify">There is only one recommendation for which implementation
has not yet started <i>(category 1) </i>according
to the Board. This concerns the promotion of a policy with host countries of
direct employment of construction workers to prevent the strong reliance on
subcontractors, which involves greater risks for workers and migrant workers in
particular.<a href="#_ftn8" name="_ftnref8" title="">[8]</a> Ongoing
implementation <i>(category 2)</i> has been
observed in relation to the embedding of human rights throughout the FIFA
organisation, including relevant committees and key staff, as well as its
member associations, the testing of the method of risk identification with
informed stakeholders to confirm or challenge findings, and the joint
inspections together with LOCs. Furthermore, the Board assessed that
implementation is ongoing for three other recommendations: first, FIFA’s
considerations on how it can make the most efficient use of its leverage when
it comes to the issue of security arrangements linked to hosting a FIFA event;
secondly, the publishing of information on the design, operation, and the
results of the monitoring of construction sites; and thirdly, making prompt and
factual statements to show awareness and knowledge about critical human rights
issues when they arise. The Board found that FIFA made considerable advancement
<i>(category 3)</i> in developing a system
for risk identification, &nbsp;such as
monitoring systems or the detailed human rights salience analysis that is part
of the Sustainability Strategy and policy of the 2022 World Cup, as well as in
identifying risks to fundamental civil and political rights and communicating
its expectation to respect these rights with host governments.</p>
<p class="MsoNormal" align="justify">The adoption of a human rights policy has been
assessed as fully implemented <i>(category
4)</i>. The same evaluation has been made in relation to the recommendations
for the 2018 and 2022 FIFA World Cup tournaments, as well as for the bidding
processes and the 2026 FIFA World Cup. However, even though the implementation
efforts concerning these issues have been evaluated under the same category, taking
a closer look reveals that the actual status of implementation is not the same.
This is because category 4 combines two criteria, which in fact reflect very
different results. ‘Full implementation’ does not necessarily reflect the same
situation as ‘closed out implementation’. In other words, a reason for an
implementation to end (‘close out’) is not necessarily linked to the fact that the
recommended measure has been implemented in its entirety. In fact, full
implementation of a certain measure can produce a completely different scenario
than abandoning a certain recommendation or measure. </p>
<p class="MsoNormal" align="justify">This can be illustrated by taking a closer look
at the implementation of measures recommended to FIFA concerning the handling
of human rights issues related to the 2018 World Cup. Most of them have been
assessed as fully implemented or closed out, and so have the measures taken in
relation to the 2022 World Cup. In reality, however, the 2018 World Cup lies in
the past and the majority of measures taken in that context were discontinued
before they could fully be implemented. For example, the recommendation on
offering the Egyptian team an alternative location, including the financial
support needed, has been evaluated as ‘closed out’, even though the Egyptian
team in the end decided to stick with Grozny. The same can be said about the
recommendation that FIFA should raise with the LOC that timely compensation is
provided in case a worker on the World Cup construction sites got injured. Even
though FIFA states that they did not have access to any financial records that
would allow a verification of cash flows, the recommendation has been evaluated
as “implemented/closed out”.<a href="#_ftn9" name="_ftnref9" title="">[9]</a>
Due to this combination of two criteria under category 4, simply taking a look
at the tabular overview provided at the end of the report<a href="#_ftn10" name="_ftnref10" title="">[10]</a>
can create a distorted picture of the actual implementation status of the
Board’s recommendations. Instead, a more careful look at FIFA’s actual efforts
on certain issues is necessary to fully understand whether FIFA was indeed
successful in implementing a certain recommendation, or whether it just dropped
the implementation, for instance because it was linked to a certain event that is
over now.&nbsp; <br></p><p class="MsoNormal" align="justify"><br></p>
<h4 align="justify">The Implications for
FIFA’s Internal Policies</h4>
<p class="MsoNormal" align="justify">Some of the recommendations included in the
report relate to how FIFA embeds its human rights commitments internally and
within its member associations. For instance, according to the Board FIFA
should discuss with the Board the reasons for the decision of the Ethics
Committee to not publish a detailed explanation of how it reached a decision in
a case, and that it should review its operations in that regard.<a href="#_ftn11" name="_ftnref11" title="">[11]</a>
In addition, it recommends FIFA to be explicit with its member associations on
what it expects and in what timeframe it expects them to align with FIFA’s
human rights responsibilities. The Board also implies that anticipated
sanctions should be included in FIFA Statutes, the Disciplinary Code and the
Ethics Code.<a href="#_ftn12" name="_ftnref12" title="">[12]</a></p>
<p class="MsoNormal" align="justify">Furthermore, the
update statement by FIFA in this second report reveals that a number of
measures were taken in relation to embedding human rights in its organization,
based on previous recommendations made by the Board.&nbsp; For instance, FIFA Council and Committee
members have to follow an e-learning course, which includes a human rights
module, and a human rights working group has been established within FIFA’s
Governance Committee. However, implementation on those matters is ongoing and it
becomes clear that this so far has not been the focus of FIFA’s human
rights-related efforts and more could be done in that regard.<a href="#_ftn13" name="_ftnref13" title="">[13]</a>
The context and overview FIFA provides on embedding the respect for human
rights is rather vague and the measures taken so far do not reach the entire
FIFA organization.<a href="#_ftn14" name="_ftnref14" title="">[14]</a></p><p class="MsoNormal" align="justify"><br></p>
<h4 align="justify">Conclusion</h4>
<p class="MsoNormal" align="justify">A number of
general observations can be made based on this summary and comparison. First, most
recommendations and action taken by FIFA seem to concentrate on FIFA’s
commitment to identify and address human rights risks, which actually was already
the case in the first report. Secondly, while FIFA’s events still seem to be a
priority, the Board focused also on new issues. Yet, perhaps not enough
attention is dedicated to changing FIFA’s international structures and culture
into a well-established acceptance and reflection of FIFA’s human rights responsibilities.
Furthermore, the report provides valuable and detailed insight into the progress
made and how it is made, for instance in relation to FIFA’s leverage over
Qatar’s Supreme Committee and the Qatari government to change certain
regulations, the human rights defender cases in which FIFA intervened, or the
external partners FIFA worked with to address certain human rights risks.<a href="#_ftn15" name="_ftnref15" title="">[15]</a>
Finally, it is a comprehensive report, reflecting the Board’s understanding
towards FIFA’s burden of having to address issues of “the past, present and
future all at once”, and the fact that “FIFA has to deal with the legacy of
decisions taken and contracts signed before the organisation recognized its
human rights responsibilities”.<a href="#_ftn16" name="_ftnref16" title="">[16]</a>
This also shows that FIFA takes the Board seriously and in many ways follows
the Board’s recommendations.</p><p align="justify">
In general, the fact that FIFA has an active
Human Rights Advisory Board in place for more than a year now and renewed its
mandate until the end of 2020 should be applauded.<a href="#_ftn17" name="_ftnref17" title="">[17]</a>
Just this month, the <a href="https://www.olympic.org/news/ioc-sets-up-advisory-committee-on-human-rights-chaired-by-hrh-prince-zeid-ra-ad-al-hussein">International Olympic Committee
announced</a>
that it is also setting up a Human Rights Advisory Committee, which is supposed
to be fully operational by the 2024 Olympic Games, unfortunately not in time for
the Beijing Winter Olympics in 2022.
</p><p><br clear="all">
</p><hr width="33%" size="1" align="left">
<p id="ftn1">
</p><p class="MsoFootnoteText"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> The members of
the board are listed in the annex of the <a href="https://resources.fifa.com/mm/document/affederation/footballgovernance/02/91/92/38/fifahumanrightsenweb_neutral.pdf">first report</a>.</p>
<p></p>
<p id="ftn2">
</p><p class="MsoFootnoteText"><a href="#_ftnref2" name="_ftn2" title="">[2]</a> Egypt’s national team chose Grozny, the capital of Chechnya, as its
training camp during the World Cup 2018. FIFA authorized this choice, despite
the fact that the region’s human rights record is dominated by cases of
extrajudicial killings, torture, and enforced disappearances and the Head of
the Chechen Republic, Ramzan Kadyrov, is known for his repression of journalists,
critics, minority groups, and human rights defenders. &nbsp;</p>
<p></p>
<p id="ftn3">
</p><p class="MsoFootnoteText"><a href="#_ftnref3" name="_ftn3" title="">[3]</a> See p.19 of the <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a></p>
<p></p>
<p id="ftn4">
</p><p class="MsoFootnoteText"><a href="#_ftnref4" name="_ftn4" title="">[4]</a> Ibid., p 20</p>
<p></p>
<p id="ftn5">
</p><p class="MsoFootnoteText"><a href="#_ftnref5" name="_ftn5" title="">[5]</a> See p. 5, 7, or
11 of the <a href="https://resources.fifa.com/mm/document/affederation/footballgovernance/02/91/92/38/fifahumanrightsenweb_neutral.pdf">first report</a></p>
<p></p>
<p id="ftn6">
</p><p class="MsoFootnoteText"><a href="#_ftnref6" name="_ftn6" title="">[6]</a> See p. 15 of the <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a></p>
<p></p>
<p id="ftn7">
</p><p class="MsoFootnoteText"><a href="#_ftnref7" name="_ftn7" title="">[7]</a> See p. 5 of the <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a></p>
<p></p>
<p id="ftn8">
</p><p class="MsoFootnoteText"><a href="#_ftnref8" name="_ftn8" title="">[8]</a> See p. 60 of the <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a></p>
<p></p>
<p id="ftn9">
</p><p class="MsoFootnoteText"><a href="#_ftnref9" name="_ftn9" title="">[9]</a> See p. 48 of the <a href="https://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvhhttps://resources.fifa.com/image/upload/fifa-second-human-rights-advisory-board-report.pdf?cloudid=hwl34aljrosubxevkwvh">second report</a></p>
<p></p>
<p id="ftn10">
</p><p class="MsoFootnoteText"><a href="#_ftnref10" name="_ftn10" title="">[10]</a> Ibid. p. 80 ff.</p>
<p></p>
<p id="ftn11">
</p><p class="MsoFootnoteText"><a href="#_ftnref11" name="_ftn11" title="">[11]</a> Ibid. p. 27</p>
<p></p>
<p id="ftn12">
</p><p class="MsoFootnoteText"><a href="#_ftnref12" name="_ftn12" title="">[12]</a> Ibid. p. 25</p>
<p></p>
<p id="ftn13">
</p><p class="MsoFootnoteText"><a href="#_ftnref13" name="_ftn13" title="">[13]</a> Ibid. p. 34 f.</p>
<p></p>
<p id="ftn14">
</p><p class="MsoFootnoteText"><a href="#_ftnref14" name="_ftn14" title="">[14]</a> Ibid. p. 33 &amp;
35</p>
<p></p>
<p id="ftn15">
</p><p class="MsoFootnoteText"><a href="#_ftnref15" name="_ftn15" title="">[15]</a> Ibid. pp. 17-18,
67, &amp; 69</p>
<p></p>
<p id="ftn16">
</p><p class="MsoFootnoteText"><a href="#_ftnref16" name="_ftn16" title="">[16]</a> Ibid. p. 28</p>
<p></p>
<p id="ftn17">
</p><p class="MsoFootnoteText"><a href="#_ftnref17" name="_ftn17" title="">[17]</a> Ibid. p. 79</p>
<p></p>
<p></p>
<p>
</p><hr class="msocomoff" width="33%" size="1" align="left">
<p>
</p>
<p></p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/a-reflection-on-the-second-report-of-fifa-s-human-rights-advisory-board
http://www.asser.nl/SportsLaw/Blog/post/a-reflection-on-the-second-report-of-fifa-s-human-rights-advisory-board#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=05d6210e-79a3-4052-88d1-1fdcbfd9cd0aWed, 19 Dec 2018 13:12:00 +0200BlogInternational Sports Law CommentariesInternational Sports Law MaterialAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=05d6210e-79a3-4052-88d1-1fdcbfd9cd0a0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=05d6210e-79a3-4052-88d1-1fdcbfd9cd0ahttp://www.asser.nl/SportsLaw/Blog/post/a-reflection-on-the-second-report-of-fifa-s-human-rights-advisory-board#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=05d6210e-79a3-4052-88d1-1fdcbfd9cd0aThe Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh
<p align="justify"><i><b>Editor’s note</b>: <a href="https://www.altius.com/people/12/sven-demeulemeester">Sven Demeulemeester</a> and <a href="https://www.altius.com/people/342/niels-verborgh">Niels Verborgh</a>
are sports lawyers at the Belgium law firm, Altius.</i></p><p align="justify">&nbsp;
</p><p class="ALTIUSbodytext" align="justify"><u><b>Introduction</b></u></p><p align="justify">In its
16 November 2018 <a href="http://www.eftacourt.int/uploads/tx_nvcases/8_17_Judgment_EN.pdf">judgment</a>, the Court of Justice of the
European Free Trade Association States (the EFTA Court) delivered its eagerly
awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski
Federation (NSF).&nbsp; <br></p><p align="justify">On 17 October
2016, Kristoffersen had taken the NSF to the Oslo District Court over the
latter’s refusal to let the renowned alpine skier enter into a sponsorship with
Red Bull. At stake were the commercial markings on his helmet and headgear in
races organised under the NSF’s umbrella. The NSF refused this sponsorship because
it had already granted the advertising on helmet and headgear to its own main
sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the
NSF should be ordered to permit him to enter into an individual marketing
contract with Red Bull. In the alternative, Kristoffersen claimed damages up to
a maximum of NOK 15 million. By a letter of 25
September 2017, the Oslo District Court referred several legal questions to the
EFTA Court in view of shedding light on the compatibility of the rules that the
NSF had invoked with EEA law.</p><p align="justify">If rules do not relate to the conduct of the
sport itself, but concern sponsorship rights and hence an economic activity,
these rules are subject to EEA law. The EFTA Court ruling is important in that
it sets out the framework for dealing with - ever more frequent - cases in
which an individual athlete’s endorsement deals conflict with the interest of
the national or international sports governing bodies (SGBs) that he or she
represents in international competitions.</p><p align="justify"><br></p>
<p class="ALTIUSLevel1" align="justify"><u><b>The <i>Kristoffersen</i> ruling: the EFTA Court targets athlete endorsement deals&nbsp; </b></u></p><p align="justify"><b><i>A. Facts and procedures</i></b></p><p align="justify">Henrik Kristoffersen, silver medalist at the
2018 Pyeongchang Olympic Games and a bronze medalist at the 2014 Sochi Olympic
Games, is a member of the Norwegian national alpine skiing team. Kristoffersen
is not an employee of the Norwegian Ski Federation (NSF), but he did sign a
standard athlete’s contract with the NSF to be able to participate in the
national team.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p><p align="justify">The Norwegian Ski Federation (NSF) - a
non-profit organisation - is a sports organisation, which organises, among
other things, activities in the discipline of alpine skiing. The NSF is a
member of both the International Ski Federation (FIS) and of the Norwegian
Olympic and Paralympic Committee and Confederation of Sports (NIF). Therefore, the
NSF is subject to the FIS’ and the NIF’s regulations. Only the FIS and its
national federations, such as the NSF, organise alpine skiing races of
financial value to alpine skiers in classic disciplines, such as the slalom and
downhill skiing. The NSF is financed by public funds and marketing contracts.
The revenues gained from marketing activities accounted for 71% of the NSF’s
total income in 2015.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p><p align="justify">Individual sponsorship agreements are subject
to the NSF’s approval,<a href="#_ftn3" name="_ftnref3" title="">[3]</a> although
the NSF’s standard athlete contract foresees an exception<a href="#_ftn4" name="_ftnref4" title="">[4]</a> in which
the athlete may enter into individual sponsorship agreements with equipment
providers in the NSF’s “skipool”. The NSF skipool is a pool scheme that is open
to selected equipment suppliers without requiring the NSF’s approval. To become
a member of the NSF skipool, suppliers must be approved as an equipment
supplier by the FIS/NSF. In addition, they also must pay an annual fee to the NSF.
Athletes are prohibited from entering into agreements with any supplier that is
not a member of the NSF skipool.<br></p><p align="justify">The NSF covers all expenses (e.g. board and
lodging, transport, equipment, medical support, insurance, etc.) of the members
of the Norwegian national alpine skiing team for approximately 200 days a year,
but the athletes do not receive any of the funds that the NSF collects from the
main and co-sponsors as the athletes’ own income.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p><p align="justify">This specific case concerns a dispute between
Kristoffersen and the NSF relating to an individual sponsorship contract that
Kristoffersen had with Red Bull<a href="#_ftn6" name="_ftnref6" title="">[6]</a> for
helmet and headgear worn in races under the auspices of the NSF and the International
Ski Federation (FIS). Kristoffersen and Red Bull had been seeking to enter into
such an agreement since 2014, but the NSF had refused permission for
Kristoffersen to sign the contract at the end of April 2018.<a href="#_ftn7" name="_ftnref7" title="">[7]</a> The NSF
had already decided to include space upon its helmet and headgear in the
contract with its main sponsor, Telenor. </p><p align="justify"><b><i>B. Questions to the EFTA Court and its answers </i></b></p><p align="justify"><u><i>The questions</i></u></p><p align="justify">In this dispute, the Oslo District Court <a href="http://www.eftacourt.int/uploads/tx_nvcases/E-08-17_Req_Adv_Op_OJ_text.pdf">referred
six questions</a> to the EFTA Court, the supranational judicial body
responsible for interpreting the Agreement on the European Economic Area (EEA) for
the EFTA States that are parties to the <a href="http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf">EEA
Agreement</a> (Iceland, Liechtenstein and Norway).<a href="#_ftn8" name="_ftnref8" title="">[8]</a> </p><p align="justify">The questions essentially covered two issues. </p><p align="justify">The first issue was whether rules, such as
those in the NSF Joint Regulations, on prior control and consent for individual
sponsorship contracts regarding commercial marking on the national team’s
equipment, or the application of those rules, constitute a restriction under Article
36 EEA Agreement or the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006L0123">Services Directive</a>.<a href="#_ftn9" name="_ftnref9" title="">[9]</a> </p><p align="justify">The second issue was whether such a restriction
on an athlete’s right to enter into sponsorship agreements could be justified.</p><p align="justify"><u><i>Prior control and consent for individual sponsorship contracts can
constitute a restriction </i></u></p><p align="justify"><i>Applicability of Article 36
EEA Agreement</i><br></p><p align="justify">The EEA Agreement’s
free movement rules may also apply to the rules laid down by sports
associations.<a href="#_ftn10" name="_ftnref10" title="">[10]</a> With
reference to the Court of Justice of the European Union’s long-standing case
law,<a href="#_ftn11" name="_ftnref11" title="">[11]</a> the EFTA Court has concluded that sport is
subject to EEA law to the extent it constitutes an economic activity. Athletes’
sponsorship contracts entail marketing services, which constitute, as such, an
economic activity.<a href="#_ftn12" name="_ftnref12" title="">[12]</a> The
EFTA Court has also concluded that the cross-border element is present since
the proposed sponsorship contract involved a Norwegian athlete and an Austrian company;
and the professional competitions in which Kristoffersen participated took
place in several EEA States.<a href="#_ftn13" name="_ftnref13" title="">[13]</a> <i></i></p><p align="justify">Next, the court has determined
whether the present case concerns the freedom of establishment or the freedom
to provide services. The court has stated that “<i>the rules in question concern, at least predominantly, the freedom to
provide services, as opposed to the freedom of establishment</i>” since the NSF’s
rules may grant or refuse permission to athletes to enter into individual
marketing contracts, which will have an impact on Kristoffersen’s opportunities
to provide marketing services. By contrast, the rules will not or only
remotely, affect an athlete’s freedom to establish themselves as professional
skiers, which is the activity from which their marketing activity derives.<a href="#_ftn14" name="_ftnref14" title="">[14]</a></p><p align="justify"><i>The prohibition of
restrictions on the freedom of providing services</i></p><p align="justify">Article 36 EEA
Agreement prohibits restrictions on the freedom of providing services within
the EEA. Measures liable to hinder or make less attractive the exercise of a
fundamental freedom guaranteed by the EEA Agreements are an encroachment upon
this freedom.<br></p><p align="justify">A system of prior
control and consent for individual sponsorship contracts appears to make the
exercise of Kristoffersen’s marketing activity less attractive. Under the EFTA
Court’s settled case law, prior authorisation schemes amount to a restriction
on the freedom to provide services.<a href="#_ftn15" name="_ftnref15" title="">[15]</a>
However, this is ultimately for the referring court to determine.<a href="#_ftn16" name="_ftnref16" title="">[16]</a></p><p align="justify"><u><i>Justifications to restrictions</i></u></p><p align="justify">A restriction on the
freedom to provide services (Article 36 EEA Agreement) may be justified on the
grounds set out in Article 33 EEA Agreement<a href="#_ftn17" name="_ftnref17" title="">[17]</a> or by
overriding reasons in the public interest, provided that it is appropriate to
secure the attainment of the objective that it pursues and does not go beyond
what is necessary to attain it.<a href="#_ftn18" name="_ftnref18" title="">[18]</a></p><p align="justify"><i>Legitimacy of the aims pursued by
the measures at issue</i></p><p align="justify">Aims of a purely economic nature, such as the desire to increase
profits, cannot justify a restriction on the freedom to provide services. The
aim of the measure in this case appears, however, to be related to ensuring a
stable basis for the NSF’s activities. The court has found it relevant that the
NSF is a non-profit sports association, that the marketing revenues are by far its
most important source of income (71% of the NSF’s total income in 2015) and
that the overall revenue is not only used for professional sports, but also for
recruitment, education and children’s and reactional sports.</p><p align="justify">The EFTA Court has indicated – with reference
to <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0325">the CJEU’s <i>Bernard</i> judgment</a><a href="#_ftn19" name="_ftnref19" title="">[19]</a> - that the objective of encouraging
the recruitment and training of young athletes is legitimate. But, it is not
sufficient for the restrictive measure to resort to a legitimate aim in general:
it must be assessed whether the measure at issue actually pursues the invoked
aim. The referring court must therefore identify, in the light of the facts of
the case, the objectives that are in fact pursued by the contested measure.<a href="#_ftn20" name="_ftnref20" title="">[20]</a><i><br></i></p><p align="justify"><u><i>Suitability/Consistency</i><a href="#_ftn20" name="_ftnref20" title=""></a></u></p><p align="justify">The party imposing the restriction must
demonstrate that the measure is suitable to achieve the legitimate objective
pursued along with genuinely reflecting a concern to attain that aim in a
consistent and systematic manner.<a href="#_ftn21" name="_ftnref21" title="">[21]</a> The
EFTA Court states that it is reasonable that some of the revenues are only
dedicated to professional athletes, but that the income generated must also
benefit the legitimate aims (such as recruitment, education, children’s and
recreational sports).<a href="#_ftn22" name="_ftnref22" title="">[22]</a></p><p align="justify">In this case, the EFTA Court has concluded that
the rules on prior control and consent for individual sponsorship contracts,
such as those laid down in the NSF Joint Regulations, are suitable to achieve
that objective since a substantial part of the income is spent on the objective
of encouraging the recruitment and training of young athletes.<a href="#_ftn23" name="_ftnref23" title="">[23]</a></p><p align="justify"><u><i>Necessity</i></u></p><p align="justify">The referring court must also assess whether
the measure goes beyond what is necessary to attain that objective. The
necessity test implies that the chosen measure must not be capable of being
replaced by an alternative measure that is equally useful but less restrictive
to the fundamental freedoms of EEA law.<a href="#_ftn24" name="_ftnref24" title="">[24]</a> In this
case, it must be assessed whether there are other less restrictive measures
that would ensure a similar level of resources.<a href="#_ftn25" name="_ftnref25" title="">[25]</a></p><p align="justify">The Court believes that the assessment of the
system’s necessity must take account of the fact that the NSF and the athletes
are mutually dependent on one another.<a href="#_ftn26" name="_ftnref26" title="">[26]</a> The
system must ensure that the athletes receive a fair share of the revenues from
sponsorship contracts. If not, that would constitute a disproportionate
restriction on the athletes’ freedom to provide sponsorship services. The Court
has argued that in this case it appears that revenue generated from marketing
contracts constitutes the most important source of income for both the NSF and
the athletes.<a href="#_ftn27" name="_ftnref27" title="">[27]</a> In
addition to that, the Court has also taken into account that the NSF covers all
the expenses of members of the Norwegian national alpine skiing team for
approximately 200 days a year. Furthermore, the athletes may enter into
individual sponsorship contracts with equipment providers in the NSF skipool
without the NSF’s approval. Outside the NSF skipool, additional contracts may
be entered into with the NSF’s approval.<a href="#_ftn28" name="_ftnref28" title="">[28]</a><br></p><p align="justify">Kristoffersen concluded several of those
contracts, which may have an impact on the assessment of the referring court about
whether the athletes receive - through the system in place - a fair share of
the revenue from the potential market for sponsorship contracts.<a href="#_ftn29" name="_ftnref29" title="">[29]</a><a href="#_ftn28" name="_ftnref28" title=""></a></p><p align="justify"><i><b>C. Guidelines for concrete decisions and procedural aspects</b></i></p><p align="justify">A system of prior control and consent for
individual sponsorship contracts may constitute a justified restriction on
athletes’ freedom to provide sponsorship services, so long as it pursues a
legitimate aim, is suitable and does not go beyond what is necessary to attain
the aim.<a href="#_ftn30" name="_ftnref30" title="">[30]</a><br></p><p align="justify">While a system of prior control and consent for
individual sponsorship contracts may be justified as such, it does not
necessarily follow that every individual decision taken under that system is
equally justified. Such individual decisions must pursue the legitimate aims of
the system in a suitable and proportionate manner and there must be a fair
balance between the interests of the NSF and the professional athletes.<a href="#_ftn31" name="_ftnref31" title="">[31]</a><a href="#_ftn30" name="_ftnref30" title=""></a></p><p align="justify">The
existence, at the time of the athlete’s application for approval, of a
collective sponsorship contract with the NSF’s main sponsor, Telenor, covering
helmet and headgear, may be relevant to the assessment of whether the concrete
refusal is justified. The assessment of proportionality may also include the
issue of whether the NSF was aware of Kristoffersen’s intention to enter into a
separate sponsorship agreement when NSF concluded its collective sponsorship
contract, as well as the impact of such a collective sponsorship agreement on
Kristoffersen’s ability to generate income from his profession. Furthermore,
the referring court may also take account of the impact of individual
sponsorship contracts on the NSF’s ability to achieve the legitimate aims
invoked.</p><p align="justify">Besides
that, the system and the decisions under a national sports federation’s
approval scheme for individual marketing contracts may not be arbitrary and must
satisfy certain procedural requirements (such as: the proper communication of an
individual decision within a reasonable time; and a review of the decision
before an independent body should be available).<a href="#_ftn32" name="_ftnref32" title="">[32]</a></p><p align="justify">Striking
the right balance between collective interests and individual ones can be
difficult as the EFTA Court’s decision illustrates. Even though the EFTA Court
sets out some key principles for evaluating advertising and sponsorship restrictions, it
leaves the ultimate call for balancing those interests to the Oslo District
Court.</p><p align="justify"><br></p>
<p class="ALTIUSbodytext" align="justify"><b><u>Conclusion</u></b></p>
<p class="ALTIUSbodytext" align="justify">The EFTA Court has drawn a clear ‘line in the
sand’ for SGBs. </p>
<p class="ALTIUSbodytext" align="justify">The
Court’s ruling considers that a system of prior control and consent for
athlete’s individual sponsorships, and potential refusal of such sponsorship,
constitutes a restriction of the freedom to provide services, to the extent
that the system makes less attractive the exercise of an athlete’s freedom to
provide a marketing service. Such a restriction will be acceptable only if it pursues a legitimate
aim, is suitable and does not go beyond what is necessary to attain the aim. </p>
<p class="ALTIUSbodytext" align="justify">Aims of a purely economic nature, such as the
desire to increase profits, cannot justify such a restriction. The objective of
encouraging the recruitment and training of young athletes can however be a
legitimate aim, to the extent that a substantial part of the income is indeed spent
on encouraging the recruitment and training of young athletes. Also, a fair
balance between the federation’s interests and the particular athlete’s interests
is required. The EFTA Court considers that SGBs and athletes are often mutually
dependent on one another. Athletes must receive a fair share of the revenues
from sponsorship contracts. A decision to refuse an endorsement must be well-reasoned
and communicated to the athlete within a reasonable timeframe. In addition, a
review procedure before a body independent of the federation should be
available. </p>
<p class="ALTIUSbodytext" align="justify">In times where SGBs’ advertising and sponsorship
restrictions are already under scrutiny from a competition law perspective,<a href="#_ftn33" name="_ftnref33" title="">[33]</a> the EFTA Court has added internal
market arguments to the mix. Both the fundamental freedoms and the competition
law arguments are likely to bolster individual athletes seeking to increase
revenue from their sporting activities. The
decision clearly indicates that SGBs should be careful when dealing with sponsorship deals. </p>
<p class="ALTIUSbodytext" align="justify">At the same time, the ruling shows SGBs how to
adopt sponsorship regulations that are the least likely to infringe EEA law. To justify restrictions, the SGBs will need to come up with a
transparent, intelligent system in which restrictions are justified in view of (proven)
redistribution of income to support the training of athletes and the funding of
amateur sports. The presence of independent review procedures will be key. In
that respect, the EFTA Court ruling may serve as ‘ammunition’ for those looking
to increase transparency and good governance in the seat of SGBs.</p>
<hr width="33%" size="1" align="left">
<p id="ftn1">
</p><p class="MsoFootnoteText"><a href="#_ftnref1" name="_ftn1" title="">[1]</a>
EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 8.</p>
<p></p>
<p id="ftn2">
</p><p class="MsoFootnoteText"><a href="#_ftnref2" name="_ftn2" title="">[2]</a>
EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 9-10.</p>
<p></p>
<p id="ftn3">
</p><p class="MsoFootnoteText"><a href="#_ftnref3" name="_ftn3" title="">[3]</a> It
follows from art. 200.3 and 204.1 of the <a href="https://res.cloudinary.com/fis-production/image/upload/v1542398263/fis-prod/FIS-CIT_Rules2018.pdf">FIS
International Ski Competition Rules</a> (joint
regulations for alpine skiing), section 13-3(3) and chapter 14 of the Norwegian
Olympic Committee’s Statutes, and Point 206.2.5 of the NSF Joint Regulations.</p>
<p></p>
<p id="ftn4">
</p><p class="MsoFootnoteText"><a href="#_ftnref4" name="_ftn4" title="">[4]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 17.</p>
<p></p>
<p id="ftn5">
</p><p class="MsoFootnoteText"><a href="#_ftnref5" name="_ftn5" title="">[5]</a> EFTA Court 16 November
2018, Case E-8/17, Kristoffersen/NSF, par. 19.</p>
<p></p>
<p id="ftn6">
</p><p class="MsoFootnoteText"><a href="#_ftnref6" name="_ftn6" title="">[6]</a> Red Bull GmbH has
its headquarters in Austria.</p>
<p></p>
<p id="ftn7">
</p><p class="MsoFootnoteText"><a href="#_ftnref7" name="_ftn7" title="">[7]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 20.</p>
<p></p>
<p id="ftn8">
</p><p class="ALTIUSbodytext"><a href="#_ftnref8" name="_ftn8" title="">[8]</a> Article 34 of the
“Agreement between the EFTA States on the Establishment of a Surveillance
Authority and a Court of Justice” foresees in the possibility for courts or
tribunals in an EFTA State (Norway, Iceland and Liechtenstein) to request the
EFTA Court to give an advisory opinion on the interpretation of the EEA
Agreement.</p>
<p></p>
<p id="ftn9">
</p><p class="MsoFootnoteText"><a href="#_ftnref9" name="_ftn9" title="">[9]</a> Directive
2006/123/EC of the European Parliament and of the Council of 12 December 2006
on service in the internal market.</p>
<p></p>
<p id="ftn10">
</p><p class="MsoFootnoteText"><a href="#_ftnref10" name="_ftn10" title="">[10]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 68.</p>
<p></p>
<p id="ftn11">
</p><p class="MsoFootnoteText"><a href="#_ftnref11" name="_ftn11" title="">[11]</a> See among others:
CJEU 12 December 1974, n° 36-74, ECLI:EU:C:1974:140; Walrave and Koch/Union
Cycliste International, par. 4; CJEU 14 July 1976, nr. 13/76,
ECLI:EU:C:1976:115, Donà/Mantero, par. 12; CJEU 15 December 1995, n° C415/93,
ECLI:EU:C:1995:463, ‘Bosman’, par. 73; CJEU 18 July 2006, n° C-519/04 P,
ECLI:EU:T:2004:282, Meca-Medina and Majcen/Commissie, par. 37-44.</p>
<p></p>
<p id="ftn12">
</p><p class="MsoFootnoteText"><a href="#_ftnref12" name="_ftn12" title="">[12]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 66.</p>
<p></p>
<p id="ftn13">
</p><p class="MsoFootnoteText"><a href="#_ftnref13" name="_ftn13" title="">[13]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 67.</p>
<p></p>
<p id="ftn14">
</p><p class="MsoFootnoteText"><a href="#_ftnref14" name="_ftn14" title="">[14]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 69.</p>
<p></p>
<p id="ftn15">
</p><p class="MsoFootnoteText"><a href="#_ftnref15" name="_ftn15" title="">[15]</a> EFTA Court 10 May
2016, Case E-19/15, ESA/Liechtenstein, par. 85.</p>
<p></p>
<p id="ftn16">
</p><p class="MsoFootnoteText"><a href="#_ftnref16" name="_ftn16" title="">[16]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 76.</p>
<p></p>
<p id="ftn17">
</p><p class="MsoFootnoteText"><a href="#_ftnref17" name="_ftn17" title="">[17]</a> Article 33 EEA
Agreement “The provisions of this Chapter and measures taken in pursuance
thereof shall not prejudice the applicability of provisions laid down by law,
regulation or administrative action providing for special treatment for foreign
nationals on grounds of public policy, public security or public health.”</p>
<p></p>
<p id="ftn18">
</p><p class="MsoFootnoteText"><a href="#_ftnref18" name="_ftn18" title="">[18]</a> EFTA Court 16 November 2018, Case
E-8/17, Kristoffersen/NSF, par. 114.</p>
<p></p>
<p id="ftn19">
</p><p class="MsoFootnoteText"><a href="#_ftnref19" name="_ftn19" title="">[19]</a> CJEU 16 March 2010, n° C-325/08,
ECLI:EU:C:2010:143, Olympique Lyonnais</p>
<p class="MsoFootnoteText">SASP/Olivier Bernard and
Newcastle UFC, par. 23.</p>
<p></p>
<p id="ftn20">
</p><p class="MsoFootnoteText"><a href="#_ftnref20" name="_ftn20" title="">[20]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 117.</p>
<p></p>
<p id="ftn21">
</p><p class="MsoFootnoteText"><a href="#_ftnref21" name="_ftn21" title="">[21]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 118.</p>
<p></p>
<p id="ftn22">
</p><p class="MsoFootnoteText"><a href="#_ftnref22" name="_ftn22" title="">[22]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 119.</p>
<p></p>
<p id="ftn23">
</p><p class="MsoFootnoteText"><a href="#_ftnref23" name="_ftn23" title="">[23]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 120.</p>
<p></p>
<p id="ftn24">
</p><p class="MsoFootnoteText"><a href="#_ftnref24" name="_ftn24" title="">[24]</a> EFTA Court, 16 May
2017, Case E-8/16 Netfonds Holding ASA, Netfonds Bank AS and Netfonds
Livsforsikring AS/the Norwegian Government.</p>
<p></p>
<p id="ftn25">
</p><p class="MsoFootnoteText"><a href="#_ftnref25" name="_ftn25" title="">[25]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 122.</p>
<p></p>
<p id="ftn26">
</p><p class="MsoFootnoteText"><a href="#_ftnref26" name="_ftn26" title="">[26]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 124.</p>
<p></p>
<p id="ftn27">
</p><p class="MsoFootnoteText"><a href="#_ftnref27" name="_ftn27" title="">[27]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 124.</p>
<p></p>
<p id="ftn28">
</p><p class="MsoFootnoteText"><a href="#_ftnref28" name="_ftn28" title="">[28]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.</p>
<p></p>
<p id="ftn29">
</p><p class="MsoFootnoteText"><a href="#_ftnref29" name="_ftn29" title="">[29]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.</p>
<p></p>
<p id="ftn30">
</p><p class="MsoFootnoteText"><a href="#_ftnref30" name="_ftn30" title="">[30]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.</p>
<p></p>
<p id="ftn31">
</p><p class="MsoFootnoteText"><a href="#_ftnref31" name="_ftn31" title="">[31]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 127-128.</p>
<p></p>
<p id="ftn32">
</p><p class="MsoFootnoteText"><a href="#_ftnref32" name="_ftn32" title="">[32]</a> EFTA Court 16
November 2018, Case E-8/17, Kristoffersen/NSF, par. 129-133.</p>
<p></p>
<p id="ftn33">
</p><p class="MsoPlainText"><a href="#_ftnref33" name="_ftn33" title="">[33]</a> Cf. <a href="https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2017/21_12_2017_DOSB_IOC.html">https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2017/21_12_2017_DOSB_IOC.html</a>. </p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/the-kristoffersen-ruling-efta-targets-athlete-endorsement-deals-by-sven-demeulemeester-and-niels-verborgh
http://www.asser.nl/SportsLaw/Blog/post/the-kristoffersen-ruling-efta-targets-athlete-endorsement-deals-by-sven-demeulemeester-and-niels-verborgh#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=426668e8-51cd-43f0-83ce-7135f2094a80Tue, 11 Dec 2018 12:12:00 +0200BlogInternational Sports Law CasesInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=426668e8-51cd-43f0-83ce-7135f2094a800http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=426668e8-51cd-43f0-83ce-7135f2094a80http://www.asser.nl/SportsLaw/Blog/post/the-kristoffersen-ruling-efta-targets-athlete-endorsement-deals-by-sven-demeulemeester-and-niels-verborgh#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=426668e8-51cd-43f0-83ce-7135f2094a80Season 2 of football leaks: A review of the first episodes
<p class="MsoNormal" align="justify">Season 2 of #FootballLeaks is now underway
since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ <a href="https://eic.network/projects/football-leaks-continues">website</a>) covering various aspect of the (lack of)
transnational regulation of football have been released (a short <a href="https://www.youtube.com/watch?v=d_GWETuHBOA">German documentary</a> sums up pretty much the state of play). For
me, as a legal scholar, this new series of revelations is an exciting
opportunity to discuss in much more detail than usual various questions related
to the operation of the transnational private regulations of football imposed by
FIFA and UEFA (as we already did during the initial football leaks with our <a href="http://www.asser.nl/SportsLaw/Blog/post/unpacking-doyen-s-tpo-deals-introduction">series of blogs</a> on TPO in 2015/2016). Much of what
has been unveiled was known or suspected by many, but the scope and precision
of the documents published makes a difference. At last, the general public, as
well as academics, can have certainty about the nature of various shady practices
in the world of football. One key characteristic that explains the lack of
information usually available is that football, like many international sports,
is actually governed by private administrations (formally Swiss associations),
which are not subject to the similar obligations in terms of transparency than
public ones (e.g. access to document rules, systematic publication of decisions,
etc.). In other words, it’s a total black box! The football leaks are offering
a rare sneak peak into that box. <br></p>
<p class="MsoNormal" align="justify">Based on what I have read so far
(this blog was written on Friday 9 November), there are three main aspects I
find worthy of discussion:</p>
<ul><li>The (lack of) enforcement of UEFA’s
Financial Fair Play (FFP) Regulations </li><li>The European Super League project and
EU competition law</li><li>The
(lack of) separation of powers inside FIFA and UEFA </li></ul><p><br></p>
<p class="MsoListParagraph" align="justify"><b>I.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</b><b><u>The Financial Fair Play and Legal
Realism: The (wide) gap between the law in books and the law in action</u></b>&nbsp;
</p><p class="MsoNormal" align="justify">In a famous <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/amlr44&amp;div=5">article</a> dating back to 1910, Roscoe Pound coined the distinction
between law in books and law in action. It highlighted an obvious (but often
underestimated) fact: laws do not speak by themselves. Moreover, laws are never
clear, as they must be interpreted in the context of concrete cases. Until now,
much of the second season of the football leaks was dedicated to UEFA’s lenient
enforcement of its FFP rules against numerous clubs (in particular Manchester
City and PSG). In other words, to the (wide) gap between the law in books and the
law in action. What becomes clear from the articles devoted to this topic (see <a href="http://www.spiegel.de/international/world/financial-fair-play-manchester-city-and-psg-pact-with-the-sheikhs-a-1236414.html">here</a>, <a href="http://www.spiegel.de/international/manchester-city-exposed-bending-the-rules-to-the-tune-of-millions-a-1236346.html">here</a> and <a href="http://www.spiegel.de/international/manchester-city-and-the-fight-against-financial-fairplay-a-1236347.html">here</a>) is that the UEFA FFP rules are far from clear
and that the certain clubs were very creative in devising ways to play with the
boundaries of the wording of the rules. </p>
<p class="MsoNormal" align="justify">These clubs have used various
stratagems (mainly inflated sponsorship agreements, but not only) to try to
convince UEFA that they complied with the rules. However, the leaks demonstrate
that they did not manage to fool the governing body, which had many reports on
its desk identifying the immense gap (1 to 100) between independent valuations
of the deals and their face value. In short, UEFA knew it was being played and
that in particular PSG and Manchester City were playing with the interpretative
frontiers of the FFP rules in order to circumvent them (or at least their
spirit) in a not-so-subtle way. Yet, the practical meaning of the law in books always
depends on those that guide the law in action, that’s why the independence and
transparency of judicial institutions (such as the UEFA Club Financial Control
Body (CFCB)) is so important. In the case of UEFA’s CFCB, the football leaks
show that the settlements reached with the clubs in spring 2014 were primarily
the result of a political decision, driven by the then UEFA Secretary General (Gianni
Infantino), who saved PSG and Manchester City by reducing their break-even
deficits through a gigantic overvaluing of their sponsorship contracts. Whether
this decision is in line with the spirit and objectives of the UEFA CL &amp; FFP
Regulations is highly doubtful. Moreover, it seems legitimate for other clubs
(such as Galatasaray or Dynamo Moscow), which have faced harsher sanctions, to
feel that they have been discriminated against. Until now, due to the lack of
detailed information available on the underlying financial situations in
specific cases, this was particularly difficult to evidence. The football leaks
have brought some transparency and certainty to this matter, and other clubs
facing UEFA sanctions on the basis of FFP breaches will certainly rely on it in
the future. Hence, these revelations damage UEFA’s reputation as a serious and
equitable governing body and its portraying of the FFP rules as a tremendous
success. </p>
<p class="MsoNormal" align="justify">The football leaks do not, however, touch
upon the issue of the legality of the FFP rules, a mechanism that fundamentally
aims to restrain the capacity of owners to use financial leverage to boost
their clubs. But, why should wealthy owners of PSG and Manchester City not be
allowed to use their billions to help their clubs win the Champions League? It
might be a bad economic investment or the returns in terms of positive PR might
not materialise as expected, but this is rather a problem for the citizens of
Qatar and the United Arab Emirates who are burning their oil &amp; gas
resources on it. In fact, nobody thinks of stopping Tesla from investing
mountains of cash until now at huge loss (the same is true for Uber). Moreover,
the FFP rules, if properly enforced, would primarily freeze the existing
inequalities and reinforce the grip of a small group of dominant clubs on
national and European club competitions. Maybe it is actually a good thing that
UEFA is not taking them seriously (here speaks the PSG fan in me). Nonetheless,
I (the reasonable academic) personally believe that there is a viable
justification for the UEFA FFP rules and it is to protect football (and its adjacent
markets) from speculation and to put a brake on the tendency of the owners to irrationally
overinvest. In other words, the rules play a necessary counter-cyclical role. Without
them the drive for short term success would fuel not only the deregulated
transfer market but also put the long-term existence of football clubs at risk
(and they are often too popular to fail). However, it must be complemented with
other regulatory mechanisms if the widening inequality between clubs in Europe
is to be corrected. On this too, the football leaks had very interesting things
to show. <br></p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoListParagraph" align="justify"><b>II.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</b><b><u>The Super League and EU law: Leveraging
competition law against free and fair competition </u></b></p>
<p class="MsoNormal" align="justify"><a name="MO">«&nbsp;In view of the considerable social importance
of sporting activities and in particular football in the Community, the aims of
maintaining a balance between clubs by preserving a certain degree of equality
and uncertainty as to results and of encouraging the recruitment and training
of young players must be accepted as legitimate.&nbsp;» (</a><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61993CJ0415">Bosman ruling</a>, para. 106)</p>
<p class="MsoNormal" align="justify">There is healthy amount of legal irony
in the football leaks story (see <a href="http://www.spiegel.de/international/world/football-documents-show-secret-plans-for-elite-league-of-top-clubs-a-1236447.html">here</a>) about the projected European ‘Super League’. It
seems a group of major clubs have relied on legal advise based on EU
competition law to push forward a scheme to breakaway from the football plebs
and devise a new, more lucrative, and most importantly exclusive competition.
Whether they truly planned to go ahead or needed the plan to look as credible
as possible to strengthen their hand in the discussions with UEFA on reshaping
the Champions League is moot. The point is that they have in practice leveraged
EU competition law to reduce competitive balance and secure their collective dominance
<i>vis-à-vis</i> their national/European
competitors. Here comes the million-dollar question: How come EU competition
law can be exploited to reduce competition? </p>
<p class="MsoNormal" align="justify">This is in my view largely due to a
widespread misinterpretation of the impact of EU law on SGBs’ regulations. Be
it under the free movement or the competition rules, the EU welcomes private
regulations through SGBs but exercises a rationality test on them: SGBs must
demonstrate that their rules and decisions pursue a legitimate objective (not
limited to their economic well-being) and are reasonable (or proportionate) to
attain that objective. In other words, they must demonstrate what they often
publicly claim, that they are acting for the public good when regulating their
sport. In practice, it means that if you threaten a speed-skater with a
lifelong ban for participating in non-sanctioned events that do not even conflict
with your own competitions, you need to explain why and show that the chosen
regulatory option is not too harsh on the speed skater. This is roughly the
situation in the <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=2&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwjS8MLR18reAhXC_qQKHY0mA3MQFjABegQIABAC&amp;url=http%3A%2F%2Fec.europa.eu%2Fcompetition%2Fantitrust%2Fcases%2Fdec_docs%2F40208%2F40208_1384_5.pdf&amp;usg=AOvVaw1NLnKuy55VXMko71HYY1Ub">ISU case</a>, in which the EC found the ISU eligibility
rules to be contrary to EU competition law because of two main reasons. First,
the ISU did not provide any convincing justifications for its threat of a lifelong
ban on skaters taking part in unsanctioned events. Moreover, and most
importantly, the lifelong ban was a disproportionate mean to attain any potentially
legitimate aim, e.g. a solidarity contribution or a shorter ban could have
constituted less restrictive alternatives. This does not mean, however, that UEFA
and FIFA could not for example justify a temporary ban from national teams (and
thus from the FIFA World Cup or UEFA European Championship) for players taking
part in the Super League or exclude temporarily clubs taking part in the Super
League from national competitions and/or fine them. If these measures are necessary
to maintain the competitive balance or preserve the solidarity mechanisms
inside the football pyramid, they might very well be justified. It is important
to remember here that AG Lenz was in §§ 218-234 of his <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61993CC0415&amp;qid=1541882647074&amp;from=FR">Opinion</a> in the Bosman case advocating redistributive
measures (in particular the equal distribution of TV rights) which are
extremely restrictive of the economic freedom of the clubs. his proposals were <b>endorsed</b> by the Court of Justice in
paragraph 110 of its final Bosman judgment. </p>
<p class="MsoNormal" align="justify">In short, it is erroneous to believe
(as so many do) that EU law supports and encourages the economically selfish
behaviour of the biggest clubs. The opposite is true: EU law recognises the
need for competitive balance and redistribution in sport and it is also ready
to accept the legitimacy of the SGBs’ regulations. The irony illustrated by the
football leaks is that EU law is being invoked by a cartel of powerful clubs to
entrench their dominant position in the European football market. Such a twisted
use of EU law would not stand the whisper of a chance at the CJEU. <br></p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoListParagraph" align="justify"><b>III.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</b><b><u>Infantino and the Separation of Power
at FIFA and UEFA: The ills of executive dominance in football </u></b></p>
<p class="MsoNormal" align="justify">Finally, if there is a governance red
thread throughout the information published in the framework of the football
leaks, it is the extent to which they illustrate the dominance of executives in
the governance of football (and sports in general). Both at the UEFA and FIFA,
Gianni Infantino, like Blatter a pure product of the football bureaucracy and an
impersonation of its profound Swiss roots, routinely intervened in the work of
pseudo independent bodies. Thus, as mentioned above, he was personally and
directly involved in the negotiations with PSG and Manchester City over their compliance
with the UEFA FFP rules. Assuming that the email exchanges reported are true,
he is the one who struck a deal with both clubs leading to a settlement of the
cases and not the ‘independent’ investigator of the UEFA CFCB. This obviously
damages the integrity of the CFCB and hints at the discretionary nature of its
decision-making contrary to a basic principle of the rule of law: equality
before the law.&nbsp;
</p><p class="MsoNormal" align="justify">Another example of the lack of
separation of powers inside FIFA and UEFA, despite powers being officially
separate on paper, is the drafting process of the newly released <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=1&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwi8l-bJ3sreAhXC2KQKHVhKBKQQFjAAegQICRAC&amp;url=https%3A%2F%2Fresources.fifa.com%2Fimage%2Fupload%2Ffifa-code-of-ethics-2018-version-takes-effect-12-08-18.pdf%3Fcloudid%3Duemlkcy8wwdtlll6sy3j&amp;usg=AOvVaw1QC3QLn6YeeOJ3UCF1yRjT">FIFA Code of Ethics</a>. The Ethics Committee can propose
amendments of the Code of Ethics to the FIFA Council (Article 54 FIFA Statutes
2018). The executive bodies of FIFA, which are the prime addressees of the Code,
are not supposed to have a say in the substance of these amendments. However,
in practice, the emails <a href="http://www.spiegel.de/international/world/gianni-infantino-as-fifa-president-provide-and-rule-a-1236439.html">obtained</a> by the football leaks show that Infantino did
not only receive a copy of the draft, but also provided comments and
suggestions, which were mostly adopted. Again this process highlights a core
governance failure at FIFA, already displayed through its <a href="https://www.theguardian.com/football/2017/sep/13/fifa-gianni-infantino-governance-committee-vitaly-mutko">policy of hiring and firing
independent ethics staff</a> and the consequent lack of truly independent counter-powers to the
massive executive powers of the President. As long as no Chinese wall is
erected between the executive bodies of FIFA/UEFA and their judicial bodies
(including the CAS), we will continue to see instances of maladministration and
abuses of power in football. Their independence must be secured through
institutional guarantees such as strict conflict of interests rules and secured
term limits, as well as a much greater transparency of the proceedings including
the systematic publication of the full disciplinary decisions.</p><p class="MsoNormal" align="justify"><br></p>
<p class="MsoNormal" align="center"><b><u>Conclusion: The public
virtue of the leak</u></b></p>
<p class="MsoNormal" align="center">'Without publicity,
no good is permanent; under the auspices of publicity, no evil can continue.' (Jeremy Bentham in <i><a href="http://oll.libertyfund.org/titles/bentham-the-works-of-jeremy-bentham-vol-2">Essay
of political tactics</a></i>)</p>
<p class="MsoNormal" align="justify">The revelations of the football
leaks will not come as a major surprise to those following football. Many
suspected that PSG and Manchester City were getting quite a good deal at UEFA’s
CFCB, many could well imagine that the big clubs strong-armed UEFA into a new
Champions League set-up with a threat of breaking away, and many guessed that
Infantino was exercising pressure and influence over ‘independent’ bodies at
FIFA and UEFA. Yet, few could prove it. Thus shielding UEFA, FIFA, the major
clubs and Infantino from well-deserved public criticisms. Now, the public
knows. We (the people of football) can decide how we want football to be
regulated and by whom. Miguel Maduro, the ephemeral former head of FIFA’s Governance
Committee, who was <a href="https://www.theguardian.com/football/2017/may/10/ousted-fifa-ethics-heads-investigating-hundreds-corruption-cases">dismissed</a> after barring Russia’s deputy prime
minister, Vitaly Mutko, from taking a position at the FIFA Council, has suggested
(in a must-watch <a href="https://www.youtube.com/watch?v=i7pFPkFR8AQ">talk</a> he gave at the Asser Institute during
#ISLJConf17) that we need a specific EU agency to oversee the governance of UEFA
and FIFA. It is an idea worth exploring, which will require a lot of
political capital and determination to be implemented. This political will can
only be marshalled if the public loudly demands change. In this regard, I’m not
sure whether this round of football leaks will suffice, but it will highlight
again how football is currently run by organisations and people which are
disregarding all basic principles of decent governance, often with nothing else
in mind than their own economic interests. This is not a natural and permanent
state of affairs. It can change. It will change. </p>
http://www.asser.nl/SportsLaw/Blog/post/season-2-of-the-football-leaks-a-review-of-the-first-episodes
http://www.asser.nl/SportsLaw/Blog/post/season-2-of-the-football-leaks-a-review-of-the-first-episodes#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=87c7a1cc-e7a1-47f4-8902-7035c1cc8c7aSun, 11 Nov 2018 22:11:00 +0200BlogInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=87c7a1cc-e7a1-47f4-8902-7035c1cc8c7a0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=87c7a1cc-e7a1-47f4-8902-7035c1cc8c7ahttp://www.asser.nl/SportsLaw/Blog/post/season-2-of-the-football-leaks-a-review-of-the-first-episodes#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=87c7a1cc-e7a1-47f4-8902-7035c1cc8c7aThe proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon<p align="justify"><b>Editor’s note: </b>Stefano
Bastianon is Associate Professor in EU Law and EU sports law at the University
of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of
the IV<sup>th</sup> Division of the High Court of Sport Justice (Collegio di
Garanzia dello sport) at the National Olympic Committee.
</p><p class="MsoNormal" align="justify"><b>&nbsp;</b></p>
<p class="MsoNormal" align="justify"><b>1.</b> On the
20<sup>th</sup> July 2018, the Court of Arbitration for Sport (hereinafter
referred to as “CAS”) issued its decision in the arbitration procedure between <a href="http://www.tas-cas.org/fileadmin/user_upload/Media_Release_5808__ENGLISH_.pdf">AC Milan
and UEFA</a>. The subject matter of this arbitration procedure was
the appeal filed by AC Milan against the <a href="https://www.uefa.com/insideuefa/about-uefa/news/newsid=2563654.html">decision</a> of the
Adjudicatory Chamber <a name="_Hlk520988843">of the UEFA Financial Control Body
</a>dated 19<sup>th</sup> June 2018 (hereinafter referred to as “the contested
decision”). As many likely know, the CAS has acknowledged that, although AC
Milan was in breach of the break-even requirement, the related exclusion of the
club from the UEFA Europe League was not proportionate. To date, it is the
first time the CAS clearly ruled that the sanction of exclusion from UEFA club
competitions for a breach of the break-even requirement was not proportionate.
For this reason the CAS award represents a good opportunity to reflect on the
proportionality test under Art. 101 TFEU and the relationship between the
landmark ruling of the European Court of Justice (hereinafter referred to as
“ECJ”) in the <a href="http://curia.europa.eu/juris/showPdf.jsf?text=&amp;docid=57022&amp;pageIndex=0&amp;doclang=EN&amp;mode=lst&amp;dir=&amp;occ=first&amp;part=1&amp;cid=360943"><i>Meca Medina and Majcen</i></a><i> </i>affair and the very recent case-law of the CAS. <br></p>
<p class="MsoNormal" align="justify"><b>2.</b>
According to the contested decision, AC Milan was guilty for failing to comply
with Articles 58 to 63 of the UEFA Financial fair-play regulations on the
break-even requirement. As a consequence the Adjudicatory Chamber has excluded
AC Milan from participating in the next UEFA Europe League for which AC Milan
has already qualified (2018-2019) at the end of the 2017-2018 Italian football
championship. The appeal filed at the CAS by AC Milan was mainly aimed at
seeking the annulment of the contested decision and ordering UEFA to enter into
a settlement agreement.</p>
<p class="MsoNormal" align="justify"><b>3.</b> The
theory of proportionality test under Art. 101(1) TFEU in sports matters goes
back to the ECJ’s ruling in the 2006 <i>Meca
Medina and Majcen</i> case, while, in general terms, this theory was enunciated
by the ECJ for the first time in the 1994 <a href="http://curia.europa.eu/juris/showPdf.jsf?text=&amp;docid=98616&amp;pageIndex=0&amp;doclang=EN&amp;mode=req&amp;dir=&amp;occ=first&amp;part=1&amp;cid=769586"><i>DLG</i> case</a> and then
repeated in the 2002 <a href="http://curia.europa.eu/juris/showPdf.jsf?text=&amp;docid=46722&amp;pageIndex=0&amp;doclang=EN&amp;mode=lst&amp;dir=&amp;occ=first&amp;part=1&amp;cid=357695"><i>Wouters and Others</i></a> case
although in a slightly different way. </p>
<p class="MsoNormal" align="justify">In the <a href="http://curia.europa.eu/juris/showPdf.jsf?text=&amp;docid=98622&amp;pageIndex=0&amp;doclang=EN&amp;mode=req&amp;dir=&amp;occ=first&amp;part=1&amp;cid=360466"><i>DLG</i> case</a> the ECJ
has ruled that: </p>
<p align="justify"></p><blockquote><p class="MsoNormal">«in order to escape the prohibition laid down in Article
85(1) of the Treaty, the restrictions imposed on members by the statutes of cooperative
purchasing associations must be limited to what is necessary to ensure that the
cooperative functions properly and maintains its contractual power in relation
to producers (…). In
addition, it is necessary to establish whether the penalties for non-compliance
with the statutes are disproportionate to the objective they pursue and whether
the minimum period of membership is unreasonable».&nbsp;
</p></blockquote><p></p><p class="MsoNormal" align="justify">Eight years later, in the <i>Wouters
and Others</i> case the ECJ established the following principles:</p>
<p align="justify"></p><p class="MsoNormal">(i) not every agreement between undertakings or
every decision of an association of undertakings which restricts the freedom of
action of the parties or of one of them necessarily falls within the
prohibition laid down in Art. 101(1) of the Treaty;</p>
<p class="MsoNormal">(ii) for the purposes of
application of that provision to a particular case, account must first of all
be taken of the overall context in which the decision of the association of
undertakings was taken or produces its effects; and</p>
<p class="MsoNormal">(iii) it has then to be considered whether the consequential effects
restrictive of competition are inherent in the pursuit of those objectives.</p><p></p>
<p class="MsoNormal" align="justify">Unlike the <i>DLG</i> case, in the <i>Wouters and Others</i> ruling the ECJ did
not expressly refer to the concept of proportionality, but preferred to recall the
concept of inherent restrictions. However, from the overall wording of the ECJ,
it is clear that in both cases it tried to apply in the antitrust sector the
same theory of mandatory requirements developed in relation to the internal
market.</p>
<p class="MsoNormal" align="justify"><b>4.</b> On the
contrary, in the <i>Meca Medina and Majcen</i>
case, the ECJ expressly referred to the concept of proportionality. In
particular, the ECJ has literally quoted the passage of the <i>Wouters and Others</i> ruling where it is
stated that:</p>
<p align="justify"></p><blockquote><p class="MsoNormal">«not every agreement between undertakings or every
decision of an association of undertakings which restricts the freedom of
action of the parties or of one of them necessarily falls within the
prohibition laid down in Article 81(1) EC. For the purposes of application of
that provision to a particular case, account must first of all be taken of the
overall context in which the decision of the association of undertakings was
taken or produces its effects and, more specifically, of its objectives. It has
then to be considered whether the consequential effects restrictive of
competition are inherent in the pursuit of those objectives (<i>Wouters and Others</i>, par. 97)».&nbsp;
</p></blockquote><p></p><p class="MsoNormal" align="justify">However, unlike the <i>Wouters</i> <i>and Others</i> case, the ECJ has added that the effects restrictive of
competition must also be proportionate to the objectives pursued.</p>
<p class="MsoNormal" align="justify">More specifically, in anti-doping issues the test of proportionality is
a means to avoid the risk that a given rule (and the sanctions imposed in case
of a breach of it) may prove excessive by virtue of:</p>
<p align="justify"></p><p class="MsoNormal">(i) firstly,
the conditions laid down for establishing the dividing line between
circumstances which amount to doping in respect of which penalties may be
imposed and those which do not, and</p>
<p class="MsoNormal">(ii) secondly, the severity of those penalties (in
the case at issue the penalty was a two year suspension).</p><p></p>
<p class="MsoNormal" align="justify">Regarding the first point, the ECJ has underlined that the dividing line
was determined by the threshold of 2 ng/ml of urine above which the presence of
Nandrolone in an athlete's body constitutes doping. Based on documents before
the Court, the ECJ could conclude that the average endogenous production
observed in all studies then published was 20 times lower than 2ng/ml of urine
and that the maximum endogenous production value observed was nearly a third
lower. As a consequence, the ECJ rejected the argument according to which the
threshold was set at such a low level that it should have been regarded as not
taking sufficient account of the phenomenon of the endogenous production of
Nandrolone.</p>
<p class="MsoNormal" align="justify">Regarding the second point, instead, the ECJ simply observed that:&nbsp;
</p><p align="justify"></p><blockquote><p class="MsoNormal">«since the appellants have, moreover, not pleaded that
the penalties which were applicable and were imposed in the present case are
excessive, it has not been established that the anti-doping rules at issue are
disproportionate».</p></blockquote><p></p>
<p class="MsoNormal" align="justify">This is the most critical passage of the ruling as one could wonder what
would happen if the plaintiffs had contested the proportionality of the
penalties. In such a case the ECJ should have examined the substance of the
plea and stated whether the two year suspension was proportionate or not. However,
in the event that the ECJ had come to the conclusion that the penalty was not
proportionate, the anti-doping rules at issue should have been declared null
and void unless it was possible to prove that the conditions of Art. 101 (3)
TFEU were fulfilled.</p>
<p class="MsoNormal" align="justify">The same reasoning was applied by the EU Commission in the <a href="http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40208"><i>ISU</i> decision</a>
concerning the Eligibility rules enacted by the International Skating Union. In
its decision, the Commission clearly underlined that:</p>
<p align="justify"></p><blockquote><p class="MsoNormal">«even if
the Eligibility rules and their consequential effects restrictive of
competition were inherent in the pursuit of any legitimate objective, the
sanctions imposed on athletes in case of breach of the Eligibility rules are
manifestly disproportionate» (par. 260).<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p></blockquote><p></p>
<p class="MsoNormal" align="justify">Thus, in sports matters there seem to be no doubt that the
proportionality test must involve also the sanctions imposed on athletes. As
already said, in the <i>ISU</i> decision,
the Commission has clearly underlined that the Eligibility rules were not
proportionate to achieve legitimate objectives in particular in view of the
disproportionate nature of the ISU’s ineligibility sanctions. More specifically
the Commission has pointed out that:</p>
<p align="justify"></p><blockquote><p class="MsoNormal">«the 2014
Eligibility rules provided for the heaviest sanction of a lifetime ban, even
for the first infringement of the Eligibility rules, without taking into
consideration the circumstances of the case (…). For the purposes of the
assessment of the proportionality of the Eligibility rules it is however not
relevant how many times the ISU has actually imposed sanctions. The fact that a
lifetime ban was imposed only once on an athlete may even underline the strong
deterrent effect of the sanctions. Although the sanctions system has been
modified in the General Regulations 2016, the sanctions remain
disproportionately punitive, as they provide for periods of ineligibility that
go up to five years for negligent participation in unauthorized events, up to
10 years for athletes that knowingly participate in unauthorised events and a
lifetime ban for athletes participating in unauthorised events endangering,
inter alia, the ‘ISU jurisdiction’. These are disproportionately heavy
sanctions in particular in view of the fact that on average a professional
athlete's entire career is around eight years long. Also the imposition of a
five-year ban is therefore likely to impact very heavily on an athlete's career
who, after years of training and sacrifices, loses the possibility to gain
income through the participation in the ISU's international events».&nbsp;
</p></blockquote><p></p><p class="MsoNormal" align="justify">This reasoning clearly shows that the Commission has considered the
sanctions imposed to be disproportionate, not simply the rule forbidding
participation in unauthorized events.</p>
<p class="MsoNormal" align="justify"><b>5.</b> To date,
neither the EU Commission nor the ECJ has had the opportunity to comment on the
compatibility of the UEFA Financial Fair-play rules with EU Competition law.
Indeed, regarding the <i>Striani</i> affair,
the Commission has <a href="http://ec.europa.eu/competition/antitrust/cases/dec_docs/40105/40105_220_6.pdf">dismissed</a> the
complaint on procedural grounds only (the lack of Community interest), while
the ECJ has <a href="http://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=166101&amp;pageIndex=0&amp;doclang=FR&amp;mode=lst&amp;dir=&amp;occ=first&amp;part=1&amp;cid=769586">declared</a> a
reference for preliminary ruling send by a Belgian court manifestly
inadmissible and therefore did not rule on the substance of the case. As a
consequence, to date there is no European formal decision that has assessed the
compatibility of UEFA Financial Fair-play rules with EU law. </p>
<p class="MsoNormal" align="justify">This opportunity, however, was offered to the CAS in the context of the <a href="https://www.uefa.com/MultimediaFiles/Download/uefaorg/CASdecisions/02/42/66/95/2426695_DOWNLOAD.pdf"><i>Galatasaray/UEFA</i> award</a>
(2016/A/4492). To fully understand the case one must go back to the 2<sup>nd</sup>
March 2016 when the Adjudicatory Chamber of the UEFA Financial Control Body
issued a decision in which it decided that Galatasaray has failed to comply
with the terms of the Settlement Agreement and imposed on Galatasaray an
exclusion from participating in the next UEFA Club competition for which it
would otherwise qualify in the next two seasons. </p>
<p class="MsoNormal" align="justify">On the 11<sup>th</sup> March 2016, Galatasaray filed an appeal with the
CAS to challenge the decision of the Adjudicatory Chamber of the UEFA Financial
Control Body. Basically, the arguments put forward by Galatasaray were based:</p>
<p align="justify"></p><p class="MsoNormal">(i) on the alleged incompatibility of the break-even rule with EU law
(namely, Art. 101 TFEU on cartels, Art. 102 TFEU on abuse of dominant position,
Art. 63 TFEU on free movement of capital, Art. 56 TFEU on free movement of
services and Art. 45 TFEU on free movement of workers); and, in the event the
first argument is rejected, </p>
<p class="MsoNormal">(ii) on
the alleged disproportionate nature of the sanctions imposed by UEFA.</p><p></p>
<p class="MsoNormal" align="justify">It is very interesting to note that from the point of view of
Galatasaray the incompatibility of the break-even rule with EU law is something
different and completely divorced from the proportionate character of the
sanction. Indeed, the latter argument is invoked only in the event the first
argument is rejected. In other words, according to this line of defence, the
compatibility of the break-even rule with EU principles must be assessed only
on the basis of the alleged restrictive effects on competition and the (alleged
legitimate) objectives pursued, without considering the sanctions imposed.</p>
<p class="MsoNormal" align="justify">In line with this approach, the CAS examined the two arguments put forward
by Galatasaray separately. Regarding the relationship between the break-even
rule and EU Competition law, the CAS reasoning can be summarized as follows:</p>
<p align="justify"></p><p class="MsoNormal">(i) UEFA Financial fair-play regulations have neither the object nor the
effect of restricting competition because: (a) UEFA Financial fair-play
regulations do not prevent the clubs from competing among themselves on the
pitch or in the acquisition of football players; (b) they prevent the
distortion of competition by overspending; (c) clubs are free to pay the
players as much as the wish provided that salaries are covered by revenues; (d)
large dominant clubs have always existed and will always exist and therefore
the alleged ossification of the structure market is a nonsense; (d)
overspending is not completely prohibited because the break-even rule only
applies over rolling periods of three years; and </p>
<p class="MsoNormal">(ii) in any case, even assuming that the break-even rule has
anticompetitive effects, the objectives sought by UEFA Financial fair-play
regulations do appear legitimate and their alleged restrictive effects inherent
to the achievement of those objective. Put simply: if UEFA intends to control
the level of indebtedness of European football clubs, the imposition of limits
to spending beyond revenues is a natural element of a financial discipline
seeking that objective.</p><p></p>
<p class="MsoNormal" align="justify">By contrast, regarding the proportionality of the sanction imposed by the
UEFA, the reasoning of the CAS is completely based on external factors which
allegedly affected the finances of Galatasaray <i>(i.e., </i>the Syrian refugee crisis, the terrorist attacks in Turkey,
the Turkish major match-fixing scandal, the exchange rate and rate
fluctuations, the national economic downturn in Turkey, the inefficiencies of
the market and the management changes). However, according to the CAS, this
argument cannot be accepted because the club failed to provide the Panel with the
accounting evidence of how and in which proportion each of these factors would
have caused the break-even deficit. Moreover, the CAS has underlined that the
sanction was not disproportionate because:</p>
<p align="justify"></p><p class="MsoNormal">(i) it was imposed as a sanction for a
second violation (<i>i.e</i>., after the
Settlement Agreement which presupposes the previous violation of the rules on
financial fair play); </p><p>(ii) an exclusion limited
in time (one season) from the UEFA competitions is consistent with the
principle of equal treatment and fair competition, as it protects the club
respecting the UEFA Financial Fair-play regulations and does not prevent future
compliance with them. <br></p><p><br></p><p></p><p class="MsoNormal" align="justify">It follows from the foregoing that, according to the CAS the
proportionate character of sanctions listed in the UEFA Financial Fair-play
regulations cannot affect the evaluation of the legitimacy of these regulations
under Art. 101 TFUE.</p>
<p class="MsoNormal" align="justify"><b>6.</b> To some
extent the <i>AC Milan/UEFA</i> case is
similar to the <i>Galatasaray </i>case. Both
clubs have failed to comply with the break-even requirement; both clubs have
been sanctioned with the exclusion for one season from the UEFA competitions;
both clubs have contested the proportionality of the sanction. Unlike Galatasaray,
however, AC Milan was denied the possibility to enter into a Settlement
Agreement<a href="#_ftn2" name="_ftnref2" title="">[2]</a>.
On the contrary, it is worthy to note that the CAS has confirmed the decision
of the Adjudicatory Chamber of the UEFA CFCB, which was rendered on the 19<sup>th</sup>
June 2018, establishing that AC Milan had failed to fulfil the break-even
requirement. However, it has annulled the decision to the extent that it has
excluded AC Milan from participating in the next UEFA Club competition for
which it would otherwise qualify in the next two seasons (<i>i.e.</i>, the 2018-19 and 2019-20 seasons), arguing that the sanction
was not proportionate. As a consequence, the CAS has referred back the case to
the Adjudicatory Chamber to issue a proportionate disciplinary measure. The
press release issued on the 20<sup>th</sup> July 2018 (<a name="_Hlk526842482">the
full text of the award is not yet available</a>) indicates that the decision to
annul the sanction and refer back the case to the Adjudicatory Chamber is based
on the following arguments:</p>
<p align="justify"></p><p class="MsoNormal">(i) some
important elements regarding the financial situation of the Club and the recent
change in the Club’s ownership have not been properly assessed by the
Adjudicatory Chamber, or could not be properly assessed at the moment when the
contested decision was rendered;</p>
<p class="MsoNormal">(ii) the
Adjudicatory Chamber is in a better position than the CAS Panel to issue a new
proportionate disciplinary measure on the basis of the current financial
situation of the Club.</p><p></p>
<p class="MsoNormal" align="justify">Despite the differences between the two cases, it is interesting to note
that in the <i>Galatasaray</i> case the CAS
assessed the sanction imposed by the Adjudicatory Chamber on the merits and
found it proportionate. To the contrary, in the <i>AC</i> <i>Milan</i> case the CAS has
assessed the sanction on the merits only to state that it was not
proportionate, but refrained from saying which other sanction could be
considered proportionate, arguing that the Adjudicatory Chamber is in a better
position than the CAS to issue a new proportionate disciplinary measure. In
other words, the CAS seems to say that it has no problem to assess the
proportionality of a given sanction ; however, if it deems that the sanction is
not proportionate, it is not for the CAS to replace the penalty imposed with
another sanction.</p>
<p class="MsoNormal" align="justify"><b>7.</b> Comparing
the awards in the <i>Galatasaray</i> and <i>AC Milan </i>cases with the ruling in <i>Meca Medina and Majcen</i> affair some
aspects deserve to be underlined. First of all, according to the case-law of
the ECJ in sports matters, the evaluation of the restrictive effects of a rule
necessarily presupposes the analysis of the proportionate character of the sanction
imposed in the event of violation of that rule. On the contrary, according to
the case-law of the CAS the analysis of the proportionate character of a
sanction necessarily presupposes a positive evaluation of the legitimate
character of the objectives pursued by the rule and its inherence to those
objectives. In other words, it seems that according to the CAS the
disproportionate nature of a sanction is not capable of affecting the
legitimacy of the rule whose violation determined that sanction. Although the
full text of the award is not yet available from the <i>AC Milan/UEFA</i> case it emerges that the disproportionate nature of
the penalty imposed only resulted in the referral of the case to the
Adjudicatory Chamber for the imposition of another sanction. Although apparently
in line with the <i>Wouters and Others</i>
case, this approach is clearly in contrast with the <i>Meca Medina and Majcen</i> case and, more generally, with the whole
theory of mandatory requirements in the field of the internal market.</p>
<p class="MsoNormal" align="justify">To this regard it is of paramount importance not to underestimate the
fundamental difference between rules which are applied<i> a priori </i>and rules that are applied <i>a posteriori</i>. As also recognized by the CAS in the well-known <a href="https://jurisprudence.tas-cas.org/Shared%20Documents/200.pdf"><i>ENIC</i> case</a>:</p>
<p align="justify"></p><blockquote><p class="MsoNormal">«rules
that are applied <i>a priori</i> tend to
prevent undesirable situations which might prove difficult or useless to deal
with afterwards, rather than imposing a penalty on someone guilty of something.
On the other hand, rules that are applied <i>a
posteriori</i> are bound to react to specific behaviours. For example, under EC
law and several national laws, rules on mergers are applied <i>a priori</i>, whereas rules on abuses of
dominant position are applied <i>a
posteriori</i>. Merger operations are checked before they actually take place,
and are blocked if the outcome of the merger would be the establishment of a
dominant position because of the possible negative consequences on the market
and not because the individuals owning or managing the merging undertakings are
particularly untrustworthy and the company after the merger is expected to
abuse of its dominant position (…). All
such <i>a priori </i>rules are applied on a preventive basis, with no appraisal
of any specific wrongdoing and no moral judgement on the individuals or
companies concerned. On the other hand, rules setting forth obligations and
corresponding penalties or sanctions, such as criminal or disciplinary rules,
can be applied only after someone has been found guilty of having violated an
obligation».&nbsp;
</p></blockquote><p></p><p class="MsoNormal" align="justify">In this context it is clear that rules applied <i>a posteriori </i>(such as the UEFA Financial Fair-play regulations)
consist of both the obligations set forth and the corresponding sanctions. In
addition, it is not possible nor correct to arbitrarily separate the obligation
from the sanction. Indeed,
the fact that in the <i>Meca Medina and
Majcen</i> ruling the proportionality test was referred precisely to the
restrictive effects and not to the prohibition of doping cannot be ignored. The
prohibition of doping as such, without the corresponding sanctions, does not have
any restrictive effect on competition.</p>
<p class="MsoNormal" align="justify">Secondly, the sanctioning system envisaged by the UEFA does not provide
clear and transparent criteria as to how the sanctions are to be applied. There
is no scale to measure and define the seriousness of the violation and no
provision illustrating the relationship between the violation and the sanction
that can be imposed. It is interesting to note that the same reasoning was
applied by the EU Commission in the <i>ISU</i>
decision. And everyone knows the outcome of this case.</p>
<p class="MsoNormal" align="justify">Thirdly, the choice of the CAS to refer back the case to the
Adjudicatory Chamber could mean that the <i>AC
Milan/UEFA</i> case is not yet closed definitively. According to Art 29 of the
Procedural rules governing the UEFA Club Financial Control Body in case of a breach
of the UEFA Financial Fair-play regulations the clubs may be sanctioned with
the following measures: <i>a)</i> warning, <i>b)</i> reprimand, <i>c)</i> fine, <i>d)</i> deduction of
points, <i>e)</i> withholding of revenues
from a UEFA competition, <i>f)</i>
prohibition on registering new players in UEFA competitions, <i>g)</i> restriction on the number of players
that a club may register for participation in UEFA competitions, including a
financial limit on the overall aggregate cost of the employee benefits expenses
of players registered on the A-list for the purposes of UEFA club competitions,<i> h)</i> disqualification from competitions
in progress and/or exclusion from future competitions, <i>i)</i> withdrawal of a title or award. If the exclusion from UEFA
competitions is certainly one of the most serious sanctions, there are other
particularly serious penalties, such as the prohibition on registering new
players in UEFA competitions or the restriction on the number of players that a
club may register for participation in UEFA competitions. Consequently, since
the seriousness of the ascertained infringement seems to exclude that the
Adjudicatory Chamber may decide to apply a very minimal sanction (such as a
warning or a reprimand), it cannot be excluded that the new sanction will also
be perceived as excessive and therefore disproportionate. And in this case, at
least in theory, nothing could prevent AC Milan from appealing to the CAS by
challenging again the disproportionate character of the (new) sanction.</p>
<p class="MsoNormal" align="justify"><b>8.</b> The <i>Meca Medina and Majcen </i>ruling presents
many ambiguities and for this reason is rightly criticized. To say nothing else,
it cannot be ignored that the extension of the proportionality test also to the
sanctioning system provided for by sports regulations raises at least two
fundamental problems: (a) firstly, to establish which criteria are to be used
to determine the proportionate character of the sanctions; and (b) secondly,
the opportunity to invest judges or arbitrators of such a task. However, the
recent case-law of the CAS on the proportionality test of UEFA Financial Fair-play
regulations seems to reveal no less serious concerns and perplexities.</p><p align="justify"></p><hr width="33%" size="1" align="justify">
<p id="ftn1" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> For more details,
see my <a href="http://www.asser.nl/SportsLaw/Blog/post/the-isu-commission-s-decision-and-the-slippery-side-of-eligibility-rules-by-stefano-bastianon-university-of-bergamo">blog</a> and Ben Van
Rompuy’s <a href="http://leidenlawblog.nl/articles/what-can-eu-competition-law-do-for-speed-skaters">blog</a>. </p>
<p class="MsoFootnoteText" align="justify">&nbsp;</p>
<p align="justify"></p>
<p id="ftn2" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref2" name="_ftn2" title="">[2]</a> As a
consequence one could argue that the decision of the panel to find that the
sanction is disproportionate is probably connected to the fact that Milan was
not offered a settlement.</p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/the-proportionality-test-under-art-101-1-tfeu-and-the-legitimacy-of-uefa-financial-fair-play-regulations
http://www.asser.nl/SportsLaw/Blog/post/the-proportionality-test-under-art-101-1-tfeu-and-the-legitimacy-of-uefa-financial-fair-play-regulations#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=914be4ee-48f6-4552-a19d-a00310cfc908Sun, 14 Oct 2018 15:10:00 +0200BlogInternational Sports Law CasesInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=914be4ee-48f6-4552-a19d-a00310cfc9080http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=914be4ee-48f6-4552-a19d-a00310cfc908http://www.asser.nl/SportsLaw/Blog/post/the-proportionality-test-under-art-101-1-tfeu-and-the-legitimacy-of-uefa-financial-fair-play-regulations#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=914be4ee-48f6-4552-a19d-a00310cfc908The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS<p align="justify">My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back&nbsp;in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The <a href="http://hudoc.echr.coe.int/eng?i=001-186434">decision</a> released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=2&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwjzuqXnn_rdAhXPZlAKHVtZBZ0QFjABegQICBAC&amp;url=http%3A%2F%2Fwww.tas-cas.org%2Ffileadmin%2Fuser_upload%2FPechstein___ISU_translation_ENG_final.pdf&amp;usg=AOvVaw1687mbgICK8ZuuC1O2F40X">ruling</a>
in the Pechstein case), and is being <a href="http://www.tas-cas.org/fileadmin/user_upload/Media_Release_Mutu_Pechstein_ECHR.pdf">presented</a>
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the <i>status quo</i>
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the&nbsp; well-known facts of both cases, in order to
focus on the core findings of the decision. <br></p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b>I.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</b><b><u>CAS arbitration is recognised as
forced arbitration: Hallelujah!</u></b></p>
<p class="MsoNormal" align="justify">As many of you will know,
longstanding doctrinal debates have been raging on the question whether
athletes freely consent to CAS arbitration.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>
I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2920555">argued</a>
at length that CAS arbitration is fundamentally post-consensual arbitration and
I am obviously quite happy to see the ECtHR endorsing this view today. However,
this is not true in all CAS cases: ordinary arbitration often involving
commercial disputes will most likely be consented to by both parties. Moreover,
as will be discussed below, the ECtHR choose to distinguish between Pechstein
and Mutu in its assessment of the free consent to CAS arbitration. </p>
<p class="MsoNormal" align="justify">Regarding Pechstein, the key
paragraphs of the decision are found between §109 and §115. The Court finds
that the International Skating Union (ISU)’s regulations were imposing CAS’
jurisdiction for disciplinary matters (§109) and that Pechstein was forced to
accept the arbitral clause if she was to participate in ISU competitions
(§110). In this context, it refers to the famous holding of the Swiss Federal
tribunal in the Cañas <a href="https://law.marquette.edu/assets/sports-law/pdf/2012-conf-canas-english.pdf">decision</a>
acknowledging the forced nature of arbitration in sport (§111) and to the ISU <a href="http://ec.europa.eu/competition/antitrust/cases/dec_docs/40208/40208_1384_5.pdf">decision</a>
of the European Commission finding that the ISU is in a quasi-monopolistic position on
the market for the organisation of speed skating competitions (§112).<a href="#_ftn2" name="_ftnref2" title=""></a>
This leads to the key deduction by the Court, that Pechstein’s choice in the
present case “was not to participate in one competition instead of another,
depending on her acquiescence or not to the arbitral clause” (§113). Thus, her
case is not deemed analogous to the commercial arbitration cases handled
previously by the ECtHR. Instead, the Court holds that “[i]n light of the
effects that a non-acceptance of the arbitral clause would have on the
professional life of the claimant, one cannot assert that the latter has
accepted the clause in a free and non-equivocal fashion.” (§115) Hence, the
Court concludes, “even though the clause was not imposed by law but by the
regulations of the ISU, the acceptance of the jurisdiction of the CAS by the
claimant must be understood as a “forced” arbitration in the sense of [the Court’s]
jurisprudence”. (§115) Thus came to an end a never-ending doctrinal debate on
the consensual nature of CAS arbitration, at least when the CAS clause is
imposed by a dominant SGB as a condition to participate in sports competitions.
</p>
<p class="MsoNormal" align="justify">Interestingly, the Court
distinguished Mutu from Pechstein. Indeed, the Court notes “the situation of
[Mutu] is different from [Pechstein’s] because the applicable regulation of the
sporting federation [FIFA] involved did not impose arbitration but left the
choice of dispute resolution mechanism to the contractual freedom of clubs and
players” (§116). Mutu invoked the imbalanced between clubs and players to argue
that he was forced to accept the clause. Yet, the Court rejects this line of
arguments on the basis that he failed to provide evidence supporting the fact
that all the players at Chelsea had accepted an arbitration clause or that no
other club would have recruited him without the insertion of an arbitration
clause into his employment contract (§117-119). The Court concludes that
contrary to Pechstein, Mutu “has not demonstrated that the only choice
available to him was to accept the arbitration clause to be able to earn a
living through the professional practice of his sport, or to refuse it and
renounce altogether his professional career.” Hence, the Court considers that
Mutu’s situation is not a case of ”forced” arbitration (§120). Nonetheless, the
Court’s assessment of the consent to arbitration is quite strict: not only
should the consent be free, it must also be unequivocal. In other words, Mutu
by freely opting for the jurisdiction of CAS instead of the national courts
must “have renounced in full awareness the right to have his dispute with
Chelsea decided by an independent and impartial tribunal” (§121). In the
present case, as Mutu challenged the independence and impartiality of the CAS
arbitrator nominated by Chelsea, the Court considered that one cannot take for
granted that he had renounced unequivocally to contest the independence and
impartiality of the CAS in a dispute involving Chelsea (§122). This part of the
judgment has potentially extremely wide implications beyond sports arbitration,
as the Court seems to indicate that any challenge to the independence or
impartiality of an arbitrator could harm the validity of an arbitration clause
freely consented to by the parties. </p>
<p class="MsoNormal" align="justify">In conclusion, after this decision
it will be very difficult to argue that disciplinary cases (e.g. doping cases) submitted
to the CAS through the appeal procedure are grounded in free consent. Nonetheless,
as pointed out by the Court in § 98 of the ruling, there are good post-consensual
foundations to justify forced CAS arbitration. This post-consensual arbitration
might come as a surprise to some, but law is fundamentally a pragmatic practice
of social ordering, which is flexible enough to adapt to specific realities. The
fact that in the world of sport a type of transnational authority is exercised
by a network of (mainly) Swiss associations, which submit their final
disciplinary decisions to the mandatory review of the CAS, might be necessary
to ensure that international sporting competitions take place on a level
playing field. However, and this is the great virtue of the present judgment,
CAS will not be allowed to hide behind a fictitious arbitration label to escape
full compliance with the procedural rights enshrined in Article 6 § 1
ECHR.&nbsp; </p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b>II.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</b><b><u>CAS arbitration must comply with
Article 6 § 1 ECHR</u></b></p>
<p class="MsoNormal" align="justify">The most important consequence of the
Court’s recognition that CAS arbitration was forced in the case of Pechstein
and equivocal in the case of Mutu is that CAS has to fully comply with the
fundamental procedural rights guaranteed by Article 6 § 1 ECHR (in particular
its civil limb, see the <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=2&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwj3vsnVpvrdAhXEEVAKHQEXD0cQFjABegQIBxAC&amp;url=https%3A%2F%2Fwww.echr.coe.int%2FDocuments%2FGuide_Art_6_ENG.pdf&amp;usg=AOvVaw0m7irkGtsg4fFxj-T7uzPo">ECHR
guide on Article 6</a>). Specifically, the Court focused on the publicity of
hearings and the independence of the CAS. Regarding the former it concluded,
rightly in my view, that the lack of publicity of Pechstein’s hearing violated
the ECHR. However, I (and more importantly two judges of the ECtHR) do dissent
from the Court’s finding that the CAS is sufficiently independent vis-à-vis the
SGBs.&nbsp;
</p><p class="MsoListParagraph" align="justify"><b><i>A.&nbsp;&nbsp;&nbsp;
</i></b><b><i>The day CAS went public: Towards transparency in CAS proceedings and beyond<br></i></b></p>
<p class="MsoNormal" align="justify">The CAS is at the same time one of
the globe’s most famous and secretive transnational courts. Every sports fan
around the world knows it and many journalists follow its press releases and
skim through its awards (when published). Based on citations in the media, it
is probably one of the (if not the) most covered and publicly discussed
international courts, and yet it is also the most secretive. The publicity of
hearings and judgments of national and international courts is the norm around
the world, and confidentiality an exception reserved to cases in which the
security and/or the privacy of an individual might call for it. In scholarship,
the transparency of the CAS is often favourably compared to commercial arbitration
as it publishes some (<a href="http://www.asser.nl/SportsLaw/Blog/post/transparency-at-the-court-of-arbitration-for-sport-by-saverio-spera">systematically
less than 30%)</a> of its awards. Yet, as is readily acknowledged by this
judgment, the true comparison should be made with national and international
courts, as the jurisdiction of the CAS is not grounded on free consent. </p>
<p class="MsoNormal" align="justify">In practice, the Court found that in
the Pechstein case, the CAS should have organised a public hearing as Pechstein
expressly requested. Indeed, the Court points out that “the questions discussed
in the framework of the challenged procedure – which related to the question
whether the claimant was rightly sanctioned for doping, and for which the CAS
heard numerous experts – necessitated the organisation of a hearing under the
control of the public” (§182). The Court notes in support of its finding that
“there was a controversy over the facts and that the sanction imposed on the
claimant had a ignominious nature, which was susceptible to damage her
professional reputation and credibility” (§182). And concludes that the lack of
publicity of the debates before the CAS violates Article 6 §1 ECHR. </p>
<p class="MsoNormal" align="justify">This is a first important step towards
imposing more transparency at the CAS (I have argued for radical transparency
in a <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=24&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwio_PX_p_rdAhUHKVAKHcvlCacQFjAXegQIBRAC&amp;url=http%3A%2F%2Fwww.playthegame.org%2Fmedia%2F7412479%2FAntoine-Duval.pdf&amp;usg=AOvVaw0aSFPwIVh8quYUdVdMg-GQ">presentation</a>
at the Play The Game conference last year). Yet, the decision of the Court is
not without ambiguity: will the CAS have to hold public hearings only when
requested by the parties or should it systematically hold public hearings and revert
to confidentiality only in exceptional circumstances? The existing case law of
the ECHR points, in my view, to the latter alternative, but even the former
would be a big leap forward for the CAS. Indeed, the <i>a minima</i> reading (read also on this issue the outstanding <a href="https://www.sportslawbulletin.org/right-fair-hearing-sports-cases/">blog</a>
by Nick de Marco) of the judgment implies that the CAS will have to organise a
public hearing if requested by one of the parties. In any case, a waiver of such
a hearing will need to be freely consented to. Furthermore, and this was not
touched upon in the present decision, Article 6 §1 ECHR also obliges to
publicise judgments once adopted, with only the narrowest of exceptions.
Currently, CAS is clearly in contravention with this obligation, as it does not
systematically publish its (appeal) awards. This fundamental lack of
transparency will have to be remedied quickly if the CAS is to operate in
conformity with the present judgment. </p>
<p class="MsoListParagraph" align="justify"><b><i>B.&nbsp;&nbsp;&nbsp;
</i></b><b><i>A fundamental dissent on CAS independence</i></b></p>
<p class="MsoNormal" align="justify">The final, key, aspect of the
judgment concerns the Court’s findings related to the independence and
impartiality of the CAS. Under Article 6 § 1 ECHR, a case must be heard by an
independent and impartial tribunal. It is, at least in my eyes, highly doubtful
whether the CAS should be considered as such, yet the Court decided otherwise. This
decision was strongly challenged in a dissent by two judges (including quite ironically
the Swiss judge). I will first present the key parts of the analysis of the
Court and then provide a critique of my own to the Court’s holdings. I believe
the most important question is not related to the independence or impartiality
of the individual arbitrators involved in the Mutu and Pechstein case, but concerns
the structural independence of the CAS from the SGBs, and I will thus focus
only on the latter. </p>
<p class="MsoNormal" align="justify">The key holdings of the Court are
found at §§151-158 and concern only the Pechstein leg of the ruling, as only she
challenged the structural independence of the CAS. The Court holds first that
the CAS’s financial dependence on the Olympic movement is not problematic
because analogically the State finances national courts (§151). It reminds then
that, back when the Pechstein case was heard in 2009, the International Council
of Arbitration for Sport (ICAS) was nominating one fifth of the arbitrators
having the interest of the athletes in mind, while being itself composed mainly
of individuals affiliated with SGBs susceptible to face proceedings against
athletes at the CAS (§154). Moreover, the Court stresses that arbitrators were
nominated for a term of four years renewable, without limits on the number of
terms, and the ICAS had the power to revoke an arbitrator by a summarily
motivated decision on the basis of article R35 of the CAS Code (§155).
Nonetheless, the Court finds that Pechstein did not provide concrete elements
challenging the independence and impartiality of any of the 300 arbitrators on
the CAS list at the time (§157). In the crucial part of the decision, the Court
acknowledges that while “it is ready to recognise that the organisations
susceptible to face the athletes in the framework of the disputes brought
before the CAS were exercising a real influence on the mechanism of nomination
of the arbitrators in place at the time, it cannot conclude that, only on the
basis of this influence, the list of arbitrators was composed, even in majority,
of arbitrators who could not be deemed independent or impartial, individually,
objectively or subjectively, from the said organisations” (§157). Henceforth, the
Court decides that it has no reason to diverge from the assessment of the Swiss
Federal tribunal regarding the independence of the CAS.</p>
<p class="MsoNormal" align="justify">In my view, the Court is right on
one point. The financing of the CAS by the SGBs is not <i>per se</i> threatening the independence of the CAS and should actually
be welcomed as an adequate form of quasi-public financing of sporting justice.
However, this is true only if the ICAS and the CAS administration are stringently
separated from the bodies that are supposed to be checked by the CAS and whose
decisions it is reviewing. Quite paradoxically the Court recognises the
influence of the SGBs on the ICAS, which was evident at the time the Pechstein
case was heard and is still apparent nowadays (the SGBs nominate 12 individuals
out of the 20 members of the ICAS and the ICAS is headed by an IOC
Vice-president), but it does not deem it sufficiently problematic to challenge
the independence and impartiality of the CAS. This is a strange conclusion for
a Court specialised in procedural justice (for a similar perplexity see §§ 7-10
of the dissent). The ICAS does not only control who gets to be appointed as a
CAS arbitrator, it also controls who gets to preside over the Appeal and
Ordinary Divisions of the CAS, and who gets to be appointed as CAS Secretary
General. All of this happens without any minutes of the ICAS meetings being
published, thus without any transparency on the reasons that led to the
appointment of X over Y. This alone should have pushed the ECtHR to have some serious
concerns over the appearance of control by the SGBs over the ICAS and,
therefore, over the CAS. Moreover, and what I feel is the major argument speaking
against CAS’s independence from the SGBs, even if one accepts the Court’s point
that an athlete will be able to find a CAS arbitrator on the list who is not
biased, in appeal cases the president of the panel will be ultimately nominated
by the President of the Appeals Division. Thomas Bach, now President of the
IOC, was the President of the Appeals Division from 1994 to 2013, since then Corinne Schmidhauser<b>, </b>who is the President of AntiDoping
Switzerland and a member of the Head of the Legal Committee of Swiss Ski has
taken over his former position. While it is often argued that if the parties
agree on a president, the President of the Division will merely ratify their
choice (§ 127), the issue is that one side (the SGBs) will be in a strong
position to impose a name to the other (the athletes). Indeed, the SGBs bargain
in the shadow of a final decision by the president of the Appeal Division, who
be it Thomas Bach or Corinne
Schmidhauser was
and still is clearly biased in their favour. This simple institutional set-up,
easy to reform but still in place, is the Gordian knot of the control of SGBs
over the CAS. &nbsp;The Court simply ignored
this argument (as did the BGH in 2016, triggering an attempt at a <a href="https://openjur.de/u/896852.html">revision</a> of the judgment), which
was raised by Pechstein’s lawyers (§ 124). In doing so, it decided to side with
a system that is at odds with the core of its own jurisprudence on the
independence and impartiality of tribunals, as powerfully outlined by the
dissent. Maybe, the Court felt it had already done enough and it did not want to
destabilise the CAS further, but it certainly missed a great opportunity to
provide a fairer judicial process to thousands of athletes worldwide. <b></b></p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoNormal" align="center"><b>Conclusion: The end of
the beginning for the CAS</b></p>
<p class="MsoNormal" align="justify">A few years ago, in a <a href="http://www.asser.nl/about-the-institute/asser-today/the-pechstein-case-the-beginning-of-the-end-for-the-court-of-arbitration-for-sport/">presentation</a>
on the Pechstein ruling of the Oberlandesgericht München, I wondered whether
the case was the beginning of the end for the CAS or (more optimistically) the
end of the beginning. By the latter, I meant that the CAS would enter into a
new dimension with the decision. This new era was, unfortunately, delayed by
the <a href="http://www.asser.nl/SportsLaw/Blog/post/the-bgh-s-pechstein-decision-a-surrealist-ruling">surrealist
judgment</a> of the BGH, which the ECtHR has in my view partially corrected
with this ruling. As from this decision, the CAS will not be able anymore to claim
that it is an arbitral tribunal legitimated through the free consent of the
parties. The ECtHR has shattered, forever, this fiction. It did not replace it
with a clear alternative foundation, however. In fact, the CAS is not a product
of national law or of an international treaty. It is, instead, simply the artefact
of transnational power and of the necessities of global sports governance. At
the same time as the ECtHR recognised its usefulness and existence, it also
held that it ought to be tamed too. This is the meaning of the Court’s finding that
CAS must comply (like any national court in Europe) with the requirements of
procedural justice enshrined in article 6 § 1 ECHR. In other words, never again
will the CAS be the same, as it will have to become a proper court. Surely, the
ECtHR betrayed its good intentions by denying the undeniable lack of
independence of the CAS. Yet, this duty will be left to the German judges in
Karlsruhe or to the Grand Chamber of the ECtHR if, as you would expect from Pechstein,
she decides to appeal the decision. In this regard, the rigorously argued
dissent will prove a strong basis to put a final nail in the coffin of CAS’s
current institutional structure. </p>
<p class="MsoNormal" align="justify">To conclude, after seemingly winning
this case, the CAS will have to undergo a radical change. The new CAS will be
open to the public (both hearings and awards), it will need to shore up its
independence from the SGBs if it desires to fends off future challenges based
on the dissent, and more generally it will have to ensure that all of its
procedures are rigorously kept in line with the constantly evolving
jurisprudence of the ECtHR on article 6 §1 ECHR. The CAS can embrace these
changes or wait for diligent lawyers to drag its awards through national courts
in Europe, which will not be as timid as before in assessing the compatibility
of CAS procedures with the ECHR. Nonetheless, there is also a lot to celebrate
in this judgment for those, like me, who believe that the CAS is a necessary
institution. It is now fully recognised as a judicial body <i>sui generis</i>, which is more than the emanation of the parties to a
dispute. In fact, it is officially and finally recognised as the Supreme Court
of World Sport, but with great powers comes also great responsibility…</p><hr width="33%" size="1" align="justify">
<p id="ftn1" align="justify">
</p><p class="MsoNormal" align="justify"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> You will find many references to these debates in Duval, Antoine, <a href="https://ssrn.com/abstract=2920555">Not
in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court
of Arbitration for Sport</a> (February 20, 2017). Max Planck Institute for
Comparative Public Law &amp; International Law (MPIL) Research Paper No.
2017-01. </p>
<p align="justify"></p>
<p id="ftn2" align="justify">
</p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/the-victory-of-the-court-of-arbitration-for-sport-at-the-european-court-of-human-rights-the-end-of-the-beginning-for-the-cas
http://www.asser.nl/SportsLaw/Blog/post/the-victory-of-the-court-of-arbitration-for-sport-at-the-european-court-of-human-rights-the-end-of-the-beginning-for-the-cas#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=3cf925b0-1d51-43cd-a32f-1614632f25e9Wed, 10 Oct 2018 00:10:00 +0200BlogInternational Sports Law CasesInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=3cf925b0-1d51-43cd-a32f-1614632f25e90http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=3cf925b0-1d51-43cd-a32f-1614632f25e9http://www.asser.nl/SportsLaw/Blog/post/the-victory-of-the-court-of-arbitration-for-sport-at-the-european-court-of-human-rights-the-end-of-the-beginning-for-the-cas#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=3cf925b0-1d51-43cd-a32f-1614632f25e9Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis<p class="MsoNormal" align="justify"><b>Editor's note: </b>Panagiotis
Roumeliotis holds an LL.B. degree from National and Kapodistrian University of
Athens, Greece and an LL.M. degree in European and International Tax Law from
University of Luxembourg. He is qualified lawyer in Greece and is presently
working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an
LL.M. in International Sports Law at Sheffield Hallam University, England. His
interest lies in the realm of tax and sports law. He may be contacted by e-mail
at ‘p.roumeliotis@hotmail.com’. <br></p><p class="MsoNormal" align="justify"><br></p><h1 align="justify"><a name="_Toc514033519"></a></h1>
<h4 align="justify">Introduction</h4>
<p class="MsoNormal" align="justify">The landmark <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61993CJ0415"><i>Bosman
Ruling</i></a> triggered
the Europeanization of the labour market for football players by banning
nationality quotas. In turn, in conjunction with the boom in TV revenues, this
led to a flourishing transfer market in which players’ agents or intermediaries
play a pivotal role, despite having a controversial
reputation.</p>
<p class="xmsonormal" align="justify">As a preliminary remark, it is important to touch upon the fiduciary
duty of sports agents towards their clients. The
principal-agent relationship implies that the former employs the agent so as to
secure the best employment and/or commercial opportunities. Conversely, the
latter is expected to act in the interest of the player as <a href="https://www.linkedin.com/pulse/fiduciary-duty-football-intermediaries-conflict-gregory-ioannidis/">their relationship should be
predicated on trust and confidence</a>, as much was made
clear in the English
Court of Appeal case of <a href="https://court-appeal.vlex.co.uk/vid/-52560159"><i>Imageview Management
Ltd v. Kelvin Jack</i></a>. Notably, agents are bound to exercise the utmost
degree of good faith, honesty and loyalty towards the players.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> </p>
<p class="MsoNormal" align="justify">At the core of this blog
lies a comparative case study
of the implementation of the <a href="https://img.fifa.com/image/upload/cr6dquxm2adupv8q3ply.pdf">FIFA Regulations on working with intermediaries</a> (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the <i>mercato</i>. I will then critically analyze
the issues raised by the implementation of the RWI and, as a conclusion, offer
some recommendations. <br></p><p class="MsoNormal" align="justify"><br></p>
<h4 class="xmsonormal" align="justify">FIFA RWI<br></h4><p class="xmsonormal" align="justify">In 2015, FIFA sought a new reform of football agents’
activity and adopted regulations on dealing with intermediaries<a href="#_ftn2" name="_ftnref2" title="">[2]</a> that are defined as “<i>a natural or legal person who, for a fee or
free of charge, represents players and/or clubs in negotiations with a view to
concluding an employment contract or represents clubs in negotiations with a
view to concluding a transfer agreement</i>”.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p>
<p class="xmsonormal" align="justify">As solemnly illustrated in the Preamble, their
purported aim is to bolster high ethical standards for the relations between
clubs, players and third parties as well as enable proper control and
transparency as regards player transfers.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> &nbsp;In a nutshell, FIFA devolved its regulatory
powers to the national federations whereas it will just monitor the regulations’
proper implementation.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p><p class="xmsonormal" align="justify"><br></p>
<h4 class="xmsonormal" align="justify">Case studies of the national implementation of the RWI in eight countries<br></h4><p class="xmsonormal" align="justify">The concrete impact of the new RWI can be duly chartered through an examination
of European FAs’ implementation (i.e. Belgium, England, France, Germany, Italy,
Netherlands, Portugal, and Spain) as <a href="https://ec.europa.eu/sport/sites/sport/files/report-transfer-of-players-2018-en.pdf">Europe possesses by far the biggest
transfer market globally</a>.</p>
<h5 class="xmsonormal" align="justify"><u>Registration</u><br></h5><p class="xmsonormal" align="justify">The registration process is a <i>conditio sine qua non</i> for agents. Based on a literal interpretation
of the RWI, agents’ registration should occur on a transactional basis<a href="#_ftn6" name="_ftnref6" title="">[6]</a> and it is conferred upon
clubs and players to provide to the respective FA the intermediary declaration
and representation contract.<a href="#_ftn7" name="_ftnref7" title="">[7]</a> As FAs are empowered to go
beyond the minimum requirements enshrined in FIFA’s RWI<a href="#_ftn8" name="_ftnref8" title="">[8]</a> in some instances they
have implemented different requirements.</p>
<h5 class="xmsonormal" align="justify"><u>Burdensome character</u><br></h5><p class="xmsonormal" align="justify">For purposes of tracking and tracing their activity,
agents should, subject to signing and filing the so-called “intermediary
declaration”, be registered with the FA where they exercise their profession. <i>Ergo</i>, the plethora of administrative
rules simultaneously applied constitute glaring obstacles, as they allegedly impede
the provision of services on behalf of agents<a href="#_ftn9" name="_ftnref9" title="">[9]</a> and, on top of that, the enhanced
amount of registration fees<a href="#_ftn10" name="_ftnref10" title="">[10]</a> is burdensome. The net result seems
to be that a “fragmented
and multi-tiered system”<a href="#_ftn11" name="_ftnref11" title="">[11]</a> does not seem compatible
with EU law. It
is more likely than not that by curtailing the development of agents’ business,
EU law (i.e. restraint on competition, free movement of services) is infringed.
</p>
<h5 class="xmsonormal" align="justify"><u>Lack of qualification assessment&nbsp; </u><br></h5><p class="xmsonormal" align="justify">Apart from France<a href="#_ftn12" name="_ftnref12" title="">[12]</a>, where candidates must
sit a written examination and Spain<a href="#_ftn13" name="_ftnref13" title="">[13]</a>, where a personal
interview with the respective FA takes place, in principle, such assessments
are not considered.&nbsp;
</p><p class="xmsonormal" align="justify">The self-certification of impeccable reputation does
not guarantee the quality of the services rendered by agents and the possession
of the requisite skills thereto. In fact, the <a href="http://ec.europa.eu/social/BlobServlet?mode=dsw&amp;docId=11799&amp;langId=en">EU Sectoral Social Dialogue
Committee for Professional Football confirmed a decreased quality of said
services</a>. The obligation to undertake a serious examination should, <i>a fortiori</i>, be taken seriously into
account and put into practice as it will offer guarantees of objectivity and
transparency.</p>
<p class="xmsonormal" align="justify">Of course one could contradict that agents derive
their value from their extensive network of contacts and market knowledge;<a href="#_ftn14" name="_ftnref14" title="">[14]</a> instead of their
education or license. Nevertheless, qualitative criteria need to be set as a
condition for eventual registration, as players should only have the option to
gravitate towards agents that can deploy them quality services. This is further
fortified by the fact that football has become a sophisticated business,
whereby complex contracts plausibly require qualified assistance so as to
achieve a better protection of players’ rights.<a href="#_ftn15" name="_ftnref15" title="">[15]</a></p>
<h5 class="MsoNormal" align="justify"><u>Remuneration</u><br></h5><p class="MsoNormal" align="justify">In theory,
agents should be entitled to receive remuneration so long as they have brought
about the employment contract/transfer agreement for which they have been
engaged. The mere introduction of the parties to a contract, without evidence
of contribution to said conclusion, is not sufficient<a href="#_ftn16" name="_ftnref16" title="">[16]</a> as the
entitlement to commission crystalizes upon the provision of services.</p>
<p class="xmsonormal" align="justify">Reality bears witness to the fact that the recommended
3% benchmark cap inserted in the FIFA RWI<a href="#_ftn17" name="_ftnref17" title="">[17]</a>, <i>albeit</i>
being the apple of discord in recent discussions, has not been interpreted by
FAs as a “must”. Only 4/8<a href="#_ftn18" name="_ftnref18" title="">[18]</a> FAs
have transposed such recommendation in their domestic RWI while the others<a href="#_ftn19" name="_ftnref19" title="">[19]</a> have
ignored it.</p>
<p class="xmsonormal" align="justify">A glance at current numbers proves that, in
spite of the recommended cap, agents’ fees have swelled; <a href="https://www.fifatms.com/wp-content/uploads/dlm_uploads/2017/12/Intermediaries-2017.pdf">as from
2013, UEFA clubs have spent 97.2% (i.e. USD 1.54 billion) of the commissions pocketed
by intermediaries globally</a>. Going forward, it is indicative that as per
the <a href="https://www.uefa.com/MultimediaFiles/Download/OfficialDocument/uefaorg/Clublicensing/02/53/00/22/2530022_DOWNLOAD.pdf">UEFA
Report for the FY 2016</a>, the average commission rate amounted to 13%
in Belgium, England, Italy and Portugal, 9% in France, 15% in Germany, 12% in
the Netherlands and 8% in Spain. The above figures succinctly demonstrate that FIFA’s recommendation
has not led to a <i>de facto</i> limitation
of the remuneration paid to agents. This is also confirmed by a report for the EC
that outlined <a href="https://ec.europa.eu/sport/sites/sport/files/report-transfer-of-players-2018-en.pdf">the increase in agents’ fees following
FIFA’s deregulation</a>.</p>
<p align="justify"></p><h5><u>Benchmark cons</u></h5><p></p>
<p class="MsoNormal" align="justify">Potential low remuneration cap
would, unavoidably, incite agents to breach their fiduciary duty and favour
their own interests. <i>Exempli gratia</i>, they would rather clinch
deals in FAs that contemplate higher commission fees, even if it is contrary to
the best interests of their client’s career. Furthermore, reprehensible practices would definitely take place since
agents’ commission and
players’ remuneration function inversely (i.e. the more agents receive, the
less players earn), while it is also likely
that agents would be
discouraged to provide high quality services.</p>
<p class="MsoNormal" align="justify"><a name="_Toc513505407">In the
same vein, it could lead to collision with EU law. As a matter of fact, it has </a><a href="http://www.asser.nl/SportsLaw/Blog/post/de-or-re-regulating-the-middlemen-the-dfb-s-regulation-of-intermediaries-under-eu-law-scrutiny-at-the-olg-frankfurt-by-antoine-duval-and-kester-mekenkamp">already
raised EU competition law concerns</a> as some have considered
it a disproportionate encroachment on agents’ economic freedom, thus, infringing
Articles 101 and 102 TFEU.</p>
<p align="justify"></p><h5><u>Benchmark pros</u></h5><p></p>
<p class="MsoNormal" align="justify">&nbsp;On the flip side, I would like to play devil’s advocate going forward. Should the 3% cap on fees apply, this would ward off “agents” whose sole purpose is to make “quick and dirty” money. Therefore, the 3% cap could work as an indirect assessment of the ones who are worth of being agents.</p>
<h5 class="MsoNormal" align="justify"><u>Conflicts of interests&nbsp; </u><br></h5><p class="MsoNormal" align="justify">From the outset of
the eventual transaction, players/clubs should endeavor to assure that no
conflicts of interest exist.<a href="#_ftn20" name="_ftnref20" title="">[20]</a> 6 out of 8 FAs<a href="#_ftn21" name="_ftnref21" title="">[21]</a> have transposed <i>ad litteram</i> the provision stipulating
the right of intermediaries to represent multiple parties to a transaction, so
long as they have articulated in advance potential conflicts of interest and received
written consent by all parties involved. The<i>
</i><a href="https://jurisprudence.tas-cas.org/Shared%20Documents/2988.pdf"><i>CSKA Sofia v. Loic Bensaid</i></a> case could be considered as a precursor to this
provision, in which it was stressed that an agent who represents both player
and club does not commit fraud so long as he has made the situation transparent
to the parties.<a href="#_ftn22" name="_ftnref22" title="">[22]</a></p>
<p class="MsoNormal" align="justify">In my view, said
provision ostensibly solves potential conflicts of interest but <i>de facto</i> goes against agents’ fiduciary
duty and ineluctably leads to such conflicts. By way of comment, should an
agent represent both the player and the destination club, he would have to act
in a neutral manner, which will adversely affect the player’s interests. In
order to maintain healthy relationships with the club so as to facilitate
future transactions, it is more likely that he will not seek the maximum salary
possible for the player. Conversely, should the agent represent both the player
and the club of origin, one can easily understand that a higher transfer fee
reduces the player’s salary and <i>vice
versa</i>.</p>
<p class="MsoNormal" align="justify">In my view, with
such provision, unwittingly or not, an own-goal has been inflicted as FAs are
not incentivized to crack down on potential conflicts of interest. At least, if
the French<a href="#_ftn23" name="_ftnref23" title="">[23]</a>/Portuguese<a href="#_ftn24" name="_ftnref24" title="">[24]</a> practice is not followed (i.e. dual representation is
prohibited), the English model<a href="#_ftn25" name="_ftnref25" title="">[25]</a> could be an attractive solution. Notably, the
possibility to seek independent legal advice should be construed as a necessary
requirement that will safeguard players’ sporting/financial interests from
being compromised.</p><h5 align="justify"><u>Minors</u></h5><p class="xmsonormal" align="justify">Almost all FAs outlawed payments when the player is a minor.<a href="#_ftn26" name="_ftnref26" title="">[26]</a>
Portugal<a href="#_ftn27" name="_ftnref27" title="">[27]</a>
seems to have applied a more stringent standard (i.e. representation is totally
forbidden), while Italy<a href="#_ftn28" name="_ftnref28" title="">[28]</a>
does not <i>stricto sensu</i> prohibit such
remuneration. </p>
<p class="xmsonormal" align="justify">One might be tempted to conclude that outlawing payments is commendable
but such perception is erroneous as the premise behind it goes against the players’
interests:</p>
<p align="justify"></p><ul><li>Agents not receiving consideration
in exchange for their services would most likely not provide the best advice for
their client, as, “good advice comes at a price”<a href="#_ftn29" name="_ftnref29" title="">[29]</a></li><li>Agents would have a vested interest
to tie up youngsters for many years, which might, in turn, work at their expense,
as the former might seek to capitalize their investment in the players as soon
as they get 18 years old. As submitted, when it comes to minors, unscrupulous
agents can go “forum shopping” and seek to conclude a representation contract
in the most favorable jurisdiction,<a href="#_ftn30" name="_ftnref30" title="">[30]</a>
i.e. the one that does not limit the duration of said contract. </li></ul><p></p>
<p class="xmsonormal" align="justify">The foregoing should be read in conjunction with the fact that in modern
football there are lots of talented young players with potential to become a
bone of contention for agents. Further to this, due account should be taken of
the fact that UEFA’s “home grown player rule” and the UEFA Financial Fair Play Regulations
push clubs to invest in youngsters and this renders their circulation in the
market more common than in the past.</p>
<p class="xmsonormal" align="justify">The <a href="https://www.fifatms.com/wp-content/uploads/dlm_uploads/2017/12/Intermediaries-2017.pdf">statistics provided by FIFA ITMS</a> show that minors are the category
of players who have most often used an agent, in 17.6% of the concluded
international transfers against 15.2% and 14.5% between 18-25 and 26-32 years
old, respectively. Therefore, it borders on the absurd that agents cannot be
remunerated when engaged in transactions involving minors. </p>
<p class="xmsonormal" align="justify">On top of that, higher thresholds ought to have been imposed i.e. the representation
contract should have a limited term and for this, a useful inspiration could be
derived from the case of <a href="https://www.lexology.com/library/detail.aspx?g=c50fff22-14de-4fb7-a68f-fb5cc2d69834"><i>Proactive Sports Management v Wayne Rooney</i></a>, where it was decided that the
eight-year image rights representation agreement<a href="#_ftn31" name="_ftnref31" title="">[31]</a>
constituted an unreasonable restraint of trade. </p>
<p align="justify"></p><h5><u>Duration of the Representation Contract</u></h5><p></p>
<p class="MsoNormal" align="justify">FIFA’s
RWI left a normative vacuum by not including a provision on the maximum
duration of a representation contract. However, my comparative study shows that
5/8 FAs<a href="#_ftn32" name="_ftnref32" title="">[32]</a> impose
a maximum 2 year term on the representation contract.</p>
<p class="MsoNormal" align="justify">Such a
limit protects not only the
players’ but also the clubs’ interests against potential abuses involved in the
engagement of agents for long periods.<a href="#_ftn33" name="_ftnref33" title="">[33]</a> Furthermore, it avoids
conflicts pertaining to restraint of trade as the absence of limits could lead to players being tied to their agent for a
disproportionate period of time.</p>
<p class="MsoNormal" align="justify">However,
since exclusivity (i.e. maximum duration of contract) is not prescribed in FIFA
RWI, this could imply that they provide a safe harbor to players not to be
contractually bound for a predetermined period of time. As submitted, this
grants the players more bargaining power and would, indirectly, force agents to
act in the best interests of their clients.<a href="#_ftn34" name="_ftnref34" title="">[34]</a></p><p class="MsoNormal" align="justify"><br> </p>
<p align="justify"></p><h4>Harmonization at European level</h4><p></p>
<p class="MsoNormal" align="justify">It is crystal clear that multiple
national disparities exist in the regulation of agents. Hence, I believe a
streamlined uniform regulatory framework is needed at the European level and,
as such, could be put in place by UEFA’s FAs.</p>
<h5 class="xmsonormal" align="justify"><u>FAs Partnership</u><br></h5><p class="xmsonormal" align="justify">As football’s transfer money and underlying intermediaries’ commission
fees are mostly concentrated in Europe, it should be underscored that consolidated
RWI at the level of all European FAs would provide a
more potent regulatory space and <a href="http://www.asser.nl/SportsLaw/Blog/post/de-or-re-regulating-the-middlemen-the-dfb-s-regulation-of-intermediaries-under-eu-law-scrutiny-at-the-olg-frankfurt-by-antoine-duval-and-kester-mekenkamp">countervail “FIFA’s regulatory
relinquishment</a>”.</p>
<p class="xmsonormal" align="justify">As FIFA switched the onus to FAs, some of them could come
together and become
embroiled in enforcing an enhanced monitoring system
and stricter conditions of access to the profession. This has also been
supported by the <a href="http://webcache.googleusercontent.com/search?q=cache:uvBz6IBPooEJ:ec.europa.eu/social/BlobServlet%3Fmode%3Ddsw%26docId%3D11799%26langId%3Den+&amp;cd=1&amp;hl=de&amp;ct=clnk&amp;gl=lu">EU Sectoral Social Dialogue
Committee for Professional Football</a>, which formulated that such harmonized
European policy is the desirable next step for a better regulatory oversight of
agents. Such partnership could be a laudable response
to the calls for a centralized and harmonized mandatory licensing system. It
should be done in <a href="http://ec.europa.eu/assets/eac/sport/library/studies/study-sports-agents-in-eu.pdf">cooperation with the EFAA</a>, so as to take into
account the agents’ perspective and likely facilitate adherence to the
regulations.</p>
<p class="xmsonormal" align="justify">In this respect, it would be prudent to follow the examples of other Sports
Associations. For example, <a href="http://ec.europa.eu/assets/eac/sport/library/studies/study-sports-agents-in-eu.pdf">FIBA when formulating effective regulations
pertaining to agents promoted harmonization while involving the agents through consultation
of AEBA</a>. Pursuant to
the <a href="https://ec.europa.eu/sport/sites/sport/files/report-transfer-of-players-2018-en.pdf">latest EC Report</a>, the <a href="https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Agents/RegulationsAmendedAugust2016.pdf">National Basketball Players
Association (“NBPA”) Regulations</a> could also be considered as an example to
follow, as they enhance the “professionalization” of agents and are based on a
mandatory licensing&nbsp;system while setting accomplished higher education as
an indispensable condition. The NFL, on the other
side of the Atlantic, is also an interesting example as it requires a
university degree or sufficient negotiating experience of minimum 7 years.</p>
<p class="xmsonormal" align="justify">As
it is generally felt that the <a href="https://www.tandfonline.com/doi/abs/10.1080/17430437.2018.1400767">agents’ business is “unethical,
complex and deceptive”</a>, thus stringent conditions should be imposed to enter
the profession. A qualitative selection process is indispensable. Players must
be able to rely on agents equipped with the necessary skills and knowledge. FAs
should look back at the <a href="https://publications.europa.eu/en/publication-detail/-/publication/86f75d97-c56c-4231-b942-bb315823d2d2/language-en"><i>Piau</i> case</a> where the compulsory licensing
system was duly endorsed as legitimate by the then Court of First Instance of
the EU, <i>inter alia</i>, on the basis that
it was necessary to introduce “professionalism and ethical standards to protect
players whose careers are short”.</p>
<p align="justify"></p><h5><u>UEFA</u></h5><p></p>
<p class="xmsonormal" align="justify">On a separate note, UEFA, as it claims to operate in a
<a href="https://www.uefa.com/insideuefa/about-uefa/eleven-values/index.html?redirectFromOrg=true">spirit of consensus with all its
stakeholders</a>, has to be the leading frontrunner of a harmonised regulation. In the
framework of Article 165 TFEU and UEFA’s conditional supervised autonomy<a href="#_ftn35" name="_ftnref35" title="">[35]</a>, this could be done in
dialogue with the EC that possesses coordination competence with regard to
sport, so as to ensure that potential new regulations can resist challenges on
grounds of restraint of trade and alleged infringements of EU law. The <a href="https://www.sportbusiness.com/sport-news/uefa-and-european-commission-pledge-tackle-transfer-market-issues">Arrangement for Cooperation signed
by the UEFA and EC</a> earlier in February 2018 could be a good starting
point going forward.</p><p class="xmsonormal" align="justify"><br></p>
<h4 class="xmsonormal" align="justify">Conclusions <br></h4>
<p class="xmsonormal" align="justify">It is unequivocal that FIFA’s RWI advent has had as a
main repercussion the deregulation of the industry, or better put, the granting
of autonomy to the FAs to regulate said industry using the minimum standards as
the cornerstone. The case study, though, evidences that important disparities
exist between crucial provisions of the various European FAs’ RWI, which leads
to compounding practical and ethical problems and to higher risks of forum
shopping.&nbsp;
</p><p class="xmsonormal" align="justify">It is forthwith conspicuous that such disparities
create challenges, which could be duly faced, first and foremost, by accepting that agents are
inherent to the <i>mercato</i> and, as
previously alluded, by taking account of their fiduciary duty. <i>Ergo</i>, it is contingent upon European FAs, in the framework of UEFA, to cooperate so as to adopt
a robust unified regime that will bring forward sweeping and streamlined changes
to the profession. To do so, agents’ should be consulted and respected, as
in the modern era of professional football, “they are the oil that keeps the
wheels of international football in motion.”<a href="#_ftn36" name="_ftnref36" title="">[36]</a></p>
<hr width="33%" size="1" align="justify">
<p id="ftn1" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> WALTER T. CHAMPION,
“Attorneys <i>Qua</i> Sports Agents: An
Ethical Conundrum” (1997) <i>7 </i>Marquette
Sports Law Journal<i> </i>349, 350.</p>
<p align="justify"></p>
<p id="ftn2" align="justify">
</p><p class="xmsonormal" align="justify"><a href="#_ftnref2" name="_ftn2" title="">[2]</a> The term “agent” will be used, as it constitutes the international
jargon.</p>
<p align="justify"></p>
<p id="ftn3" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref3" name="_ftn3" title="">[3]</a> 2015
FIFA RWI, Definition of an intermediary.</p>
<p align="justify"></p>
<p id="ftn4" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref4" name="_ftn4" title="">[4]</a> 2015
FIFA RWI, Preamble.</p>
<p align="justify"></p>
<p id="ftn5" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref5" name="_ftn5" title="">[5]</a> 2015
FIFA RWI, Article 10.</p>
<p align="justify"></p>
<p id="ftn6" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref6" name="_ftn6" title="">[6]</a> JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “Limiting
intermediaries’ fees and enhancing fiduciary duty” [2018] World<i> </i>Sports Advocate 11, 12.</p>
<p align="justify"></p>
<p id="ftn7" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref7" name="_ftn7" title="">[7]</a> 2015
FIFA RWI, Articles 3 and 6(1).</p>
<p align="justify"></p>
<p id="ftn8" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref8" name="_ftn8" title="">[8]</a> 2015
FIFA RWI, Preamble.</p>
<p align="justify"></p>
<p id="ftn9" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref9" name="_ftn9" title="">[9]</a> JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s
new Regulations on Working with Intermediaries” [2015]<i> </i>Football Legal 36.</p>
<p align="justify"></p>
<p id="ftn10" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref10" name="_ftn10" title="">[10]</a> Annex 11 to the
URBSFA Regulations, Article 4 [1.3]; The FA website, <i>Intermediaries Registration</i> [online]. Available at: <a href="http://www.thefa.com/football-rules-governance/policies/intermediaries/intermediaries-registration">http://www.thefa.com/football-rules-governance/policies/intermediaries/intermediaries-registration</a> [accessed
on 1 May 2018]; Code du Sport, Article L.222-7; FIGC, Regolamento per i Servizi
di Procuratore Sportivo, Art. 4(1), 4(3) and 5; KNVB Regulations, Article 2(6);
PFF Regulations, Article 7(2); RFEF Regulations, Article 7.</p>
<p align="justify"></p>
<p id="ftn11" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref11" name="_ftn11" title="">[11]</a> JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s
new Regulations on Working with Intermediaries” [2015]<i> </i>Football Legal 37; ORNELLA DESIREE BELLIA “FIFA
Regulations on Working with Intermediaries: Analysis from the perspective of
the clubs” in MICHELE COLUCCI (ed) <i>The
FIFA Regulations on Working with Intermediaries, Implementation at National
Level</i> (2<sup>nd</sup> ed., International Sports Law and Policy Bulletin
1/2016) 57-66, 59.</p>
<p align="justify"></p>
<p id="ftn12" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref12" name="_ftn12" title="">[12]</a> Code du Sport,
Article L.222-7.</p>
<p align="justify"></p>
<p id="ftn13" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref13" name="_ftn13" title="">[13]</a> RFEF
Regulations, Article 4.</p>
<p align="justify"></p>
<p id="ftn14" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref14" name="_ftn14" title="">[14]</a> IAN LYNAM and JONATHAN ELLIS, “Players’ Agents”, in ADAM LEWIS QC
and JONATHAN TAYLOR (eds), <i>Sports: Law and Practice </i>(3rd edition, BLOOMSBURY 2016), 1418 –
1478, 1420.</p>
<p align="justify"></p>
<p id="ftn15" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref15" name="_ftn15" title="">[15]</a> SALEH ALOBEILDI, “FIFA’s
RWI – Historical overview” [2015] Football Legal 30.</p>
<p align="justify"></p>
<p id="ftn16" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref16" name="_ftn16" title="">[16]</a> CAS 2006/A//1019
<i>G. v. O</i>., award of 5 December 2006
(anonymized) [11].</p>
<p align="justify"></p>
<p id="ftn17" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref17" name="_ftn17" title="">[17]</a> 2015 FIFA
RWI, Article 7(3).</p>
<p align="justify"></p>
<p id="ftn18" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref18" name="_ftn18" title="">[18]</a> Annex 11 to the
URBSFA Regulations, Article 8 [3]; FA Regulations, Rule C (11); FIGC,
Regolamento per i Servizi di Procuratore Sportivo, Art. 6; KNVB Regulations,
Article 8(6).</p>
<p align="justify"></p>
<p id="ftn19" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref19" name="_ftn19" title="">[19]</a> Code du Sport,
Article L. 222-17&nbsp;; DFB Regulations, Section 7.1-7.2; PFF Regulations,
Article 11&nbsp;; In Spain no remuneration cap has been prescribed.</p>
<p align="justify"></p>
<p id="ftn20" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref20" name="_ftn20" title="">[20]</a> 2015
FIFA RWI, Article 2(2).</p>
<p align="justify"></p>
<p id="ftn21" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref21" name="_ftn21" title="">[21]</a> Annex 11 to the
URBSFA Regulations, Article 9 [3]; FA Regulations, Rule E (2) a-c; DFB
Regulations, Article 8; FIGC, Regolamento per i Servizi di Procuratore
Sportivo, Art. 7; KNBV Regulations, Article 4; RFEF
Regulations, Article 12.</p>
<p align="justify"></p>
<p id="ftn22" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref22" name="_ftn22" title="">[22]</a> CAS
2012/A/2988, <i>PFC CSKA Sofia v. Loic
Bensaid</i> (award of 14 June 2013) paras 74, 82 and 101.</p>
<p align="justify"></p>
<p id="ftn23" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref23" name="_ftn23" title="">[23]</a> Code du Sport,
Article L.222-17.</p>
<p align="justify"></p>
<p id="ftn24" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref24" name="_ftn24" title="">[24]</a> PFF Regulations,
Article 5(3).</p>
<p align="justify"></p>
<p id="ftn25" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref25" name="_ftn25" title="">[25]</a> FA Regulations,
Rule E (2) d.</p>
<p align="justify"></p>
<p id="ftn26" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref26" name="_ftn26" title="">[26]</a> Annex 11 to the
URBSFA Regulations, Article 8 [8]; FA Regulations, Art. C (10)&nbsp;; Code
du Sport, Article L.222-5; DFB Regulations, Art. 7.7; KNVB Regulations, Article
8(7); RFEF Regulations, Article 10.</p>
<p align="justify"></p>
<p id="ftn27" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref27" name="_ftn27" title="">[27]</a> PFF Regulations,
Article 5(4); The Physical Activity and Sports Basic Law (“PASBL”) or Law no.
5/2007, Article 37(2).</p>
<p align="justify"></p>
<p id="ftn28" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref28" name="_ftn28" title="">[28]</a> SALVATORE CIVALE and MICHELE COLUCCI, “The FIGC Regulations on Intermediaries” in MICHELE COLUCCI
(ed) <i>The FIFA Regulations on Working with
Intermediaries, Implementation at National Level</i> (2<sup>nd</sup> ed.,
International Sports Law and Policy Bulletin 1/2016) 329-338, 335.</p>
<p align="justify"></p>
<p id="ftn29" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref29" name="_ftn29" title="">[29]</a> JEAN-MICHEL MARMAYOU, “EU Law and Principles applied to
FIFA Regulations” in MICHELE COLUCCI (ed) <i>The
FIFA Regulations on Working with Intermediaries, Implementation at National
Level</i> (2<sup>nd</sup> ed., International Sports Law and Policy Bulletin
1/2016) 75-112, 91.</p>
<p align="justify"></p>
<p id="ftn30" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref30" name="_ftn30" title="">[30]</a> ROBERTO BRANCO MARTINS, “FIFA’s RWI – Agents’ perspective” [2015] Football
Legal 50.</p>
<p align="justify"></p>
<p id="ftn31" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref31" name="_ftn31" title="">[31]</a> The
judge supported his argumentation by making reference to the obsolete FIFA
Regulations, which stipulated that representation contracts were limited to a
maximum two-year term, attaching to said agreement a unique character.</p>
<p align="justify"></p>
<p id="ftn32" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref32" name="_ftn32" title="">[32]</a> FA Regulations,
Art. B (10); FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 5; PFF
Regulations, Article 9(2) §c; RFEF Regulations,
Article 8(4).</p>
<p align="justify"></p>
<p id="ftn33" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref33" name="_ftn33" title="">[33]</a> CAS 2008/A/1665,
<i>J. v. Udinese Calcio S.p.A,</i> (award of
19 May 2009) para 54.</p>
<p align="justify"></p>
<p id="ftn34" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref34" name="_ftn34" title="">[34]</a> WIL VAN MEGEN, “The FIFA Regulations on Intermediaries: The
players’ point of view” in MICHELE COLUCCI (ed) <i>The
FIFA Regulations on Working with Intermediaries, Implementation at National
Level</i> (2<sup>nd</sup> ed., International Sports Law and Policy Bulletin
1/2016) 67-74, 74.</p>
<p align="justify"></p>
<p id="ftn35" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref35" name="_ftn35" title="">[35]</a> BORJA GARCIA,
“Sport governance after the White Paper: the demise of the European model?”
(2009) 1:3 International Journal of Sport Policy 267; It was firstly stated in
the <i>Meca-Medina</i> case [47]: “<i>restrictions imposed by sports federations
must be limited to what is necessary to ensure the proper conduct of
competitive sport</i>”.</p>
<p align="justify"></p>
<p id="ftn36" align="justify">
</p><p class="MsoFootnoteText" align="justify"><a href="#_ftnref36" name="_ftn36" title="">[36]</a> ROBERTO BRANCO MARTINS and GREGOR
REITER,
“Players’ Agents: Past, Present … Future?” (2010) 1-2 The International Sports
Law Journal 7.</p>
<p></p>
<p></p>
http://www.asser.nl/SportsLaw/Blog/post/football-intermediaries-would-a-european-centralized-licensing-system-be-a-sustainable-solution-by-panagiotis-roumeliotis
http://www.asser.nl/SportsLaw/Blog/post/football-intermediaries-would-a-european-centralized-licensing-system-be-a-sustainable-solution-by-panagiotis-roumeliotis#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=c779e929-902a-4cb8-99a8-299c15315cffMon, 24 Sep 2018 17:09:00 +0200BlogInternational Sports Law CommentariesInternational Sports Law PublicationsAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=c779e929-902a-4cb8-99a8-299c15315cff0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=c779e929-902a-4cb8-99a8-299c15315cffhttp://www.asser.nl/SportsLaw/Blog/post/football-intermediaries-would-a-european-centralized-licensing-system-be-a-sustainable-solution-by-panagiotis-roumeliotis#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=c779e929-902a-4cb8-99a8-299c15315cffSeraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated<p align="justify">Rumours are swirling around the
decision (available in French <a href="http://www.iusport.es/resoluciones-judiciales/SENTENCIA-CORTE-APELACION-BRUSELAS-TAS-2018-anonimizada.pdf">here</a>) of the Court of Appeal of Brussels in the
case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian
Football Federation, URSBFA) over the latter’s ban on third-party ownership.
The headlines in various media are quite dramatic (see <a href="http://plus.lesoir.be/176064/article/2018-09-01/le-rfc-seraing-met-une-premiere-claque-la-fifa">here</a> and <a href="https://www.lemonde.fr/football/article/2018/08/31/football-le-recours-au-tas-qu-impose-la-fifa-est-illegal-selon-la-cour-d-appel-de-bruxelles_5348695_1616938.html">here</a>), references are made to <a href="https://www.rtbf.be/sport/football/detail_les-clauses-fifa-concernant-le-recours-au-tribunal-arbitral-du-sport-sont-illegales?id=10007518">a new Bosman</a>, or to a <a href="https://en.as.com/en/2018/09/05/football/1536164687_519265.html?id_externo_rsoc=comp_tw">shaken sport’s legal system</a>. Yet, after swiftly reading the
decision for the first time on 29th August, I did not have, unlike with the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297">Pechstein
ruling</a> of the Oberlandesgericht München, the immediate impression that this
would be a major game-changer for the Court of Arbitration for Sport (CAS) and
the role of arbitration in sports in general. After careful re-reading, I
understand how certain parts of the ruling can be misunderstood or
over-interpreted. I believe that much of the press coverage failed to accurately
reflect the reasoning of the court and to capture the real impact of the
decision. In order to explain why, I decided to write a short Q&amp;A
(including the (not water-proof) English translations of some of the key
paragraphs of the decision).
</p><p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b><i>1.&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i>What is the case about? </i></b></p>
<p class="MsoNormal" align="justify">RFC Seraing United (hereinafter
Seraing) has, since the adoption of FIFA’s ban on third-party ownership, been
at the forefront of a legal crusade against the ban (as <a href="http://www.asser.nl/SportsLaw/Blog/post/unpacking-doyen-s-tpo-deals-in-defence-of-the-compatibility-of-fifa-s-tpo-ban-with-eu-law">I have explained on this blog</a> I personally believe the ban is
legitimate and compatible with EU law). The club has fought the ban tooth and
nail at the CAS (the award is <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=6&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwi_luywlLDdAhWxNOwKHUnbDcoQFjAFegQIBRAC&amp;url=http%3A%2F%2Fwww.tas-cas.org%2Ffileadmin%2Fuser_upload%2FSentence_4490__FINALE__internet.pdf&amp;usg=AOvVaw23khU47P4faEGUqhK5Zk9M">here</a>) and later at the Swiss Federal Tribunal (the
translation of the ruling is available <a href="https://entscheide.weblaw.ch/cache.php?link=20.02.2018_4A_260-2017&amp;sel_lang=de),%20la%20TPO%20(Third-Party%20Ownership">here</a>), in both instances unsuccessfully. It is now
challenging before the Belgian courts the sanctions that were imposed by FIFA, confirmed
by the CAS award, and enforced by the URSBFA. For this protracted and expensive
legal campaign, RFC Seraing enjoys the backing of Doyen, the infamous
investment firm <a href="http://www.asser.nl/SportsLaw/Blog/post/unpacking-doyen-s-tpo-deals-introduction">at the centre</a> of the football leaks scandal. The
29th August decision is the last episode in this saga and the first that has
been widely portrayed as a big win for RFC Seraing.</p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b><i>2.&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i>What are the findings of the decision? </i></b></p>
<p class="MsoNormal" align="justify">So, why is it widely reported as a
win for Seraing? This is because the Court of Appeal considered itself
competent to hear the case and disregarded the objections (in particular the
claim that a valid CAS arbitration clause existed) raised by FIFA, UEFA and the
URSBFA regarding its jurisdiction. However, the Court also refused to send a
request for a preliminary ruling to the&nbsp; Court of Justice of the European Union, a
long-standing demand of Seraing’s lawyers. </p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b><i>3.&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i>Why did the Belgium court find that the CAS arbitration clause invoked
by FIFA &amp; Co is invalid?</i></b></p>
<p class="MsoNormal" align="justify">The core of the reasoning (found at
§13 to §15 of the decision) on the validity of the CAS arbitration clause included
in FIFA’s statutes turns on whether it aims at a «&nbsp;defined legal
relationship&nbsp;», a prerequisite for the validity of arbitration clauses
under Belgium law and the New York Convention. In laymen terms: if the clause
is too general and does not provide a clear definition of the scope of disputes
it covers, then it is invalid. Unlike reported in many outlets, the focus is
not directly on the free consent to CAS arbitration, and the Court of Appeal
does not declare the clause contrary to EU law or the ECHR on this basis, but
on the vague nature of the CAS arbitration clause enshrined in the FIFA
Statutes and its incompatibility with Belgian law. </p>
<p class="MsoNormal" align="justify">In the case of Seraing, the clause invoked
by FIFA was by reference, meaning that the reference of Seraing’s statutes to its
compliance with the statutes of FIFA (at the time of initiating the proceedings
the <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=1&amp;cad=rja&amp;uact=8&amp;ved=2ahUKEwiHmozLvrDdAhXByKQKHdGyBfUQFjAAegQIAhAC&amp;url=https%3A%2F%2Fimg.fifa.com%2Fimage%2Fupload%2Fqcpshqziazmnmikh6tk5.pdf&amp;usg=AOvVaw3T4xzz7zWI-gh4SzTh-QwU">2015
FIFA Statutes</a>), which include an arbitration clause, was supposed to
constitute a valid agreement to arbitrate the present dispute. Yet, as the
Court of Appeal points out, the FIFA statutes are rather vague with regard to
the nature of the disputes that are to be arbitrated. In fact, article 66.1
FIFA Statutes (2015 edition) provides simply that «&nbsp;FIFA recognises
the independent Court of Arbitration for Sport (CAS) with headquarters in
Lausanne (Switzerland) to resolve disputes between FIFA, Members,
Confederations, Leagues, Clubs, Players, Officials, intermediaries and licensed
match agents&nbsp;». Moreover,
the Court of Appeal also refers to article 59.1 and 2 FIFA Statutes (presumably
this time 2018 edition) that does not allow recourse to national courts unless
provided by FIFA rules. It concludes that based on these provisions, «&nbsp;the
submission to arbitration is provided in general for all disputes between
certain parties, including FIFA, UEFA, URBSFA and football clubs (including RFC
Seraing), but without any precisions or indications with regard to the legal
relationship affected&nbsp;». Hence, «&nbsp;the intention of the drafters of
this clause is clearly to capture all types of disputes between the designated
parties, turning it into a general clause, which cannot be found applicable as
it does not constitute an arbitration clause recognised under Belgian law&nbsp;».
</p>
<p class="MsoNormal" align="justify">FIFA
submitted that the type of disputes governed by the arbitration clause were necessarily
limited to the social objective of FIFA and that the CAS’s competence was
limited to «&nbsp;sporting&nbsp;» disputes. But the Court of Appeal countered
that the former limit remains too vague to find that the clause targets a
«&nbsp;defined legal relationship&nbsp;». It further deemed that the restriction
to «&nbsp;sporting&nbsp;» disputes was not included in the clause and that the
CAS could independently decide to amend the scope of the disputes that fall
under its competences. It also rejected the view of the URBFSA that the clause
was limited to disputes concerning «&nbsp;the statutes, regulations, directives
and decisions of the URBFSA, FIFA and UEFA&nbsp;». And, it refused to consider
that the article 38.2. of Seraing’s statutes, providing that «&nbsp;[E]very
arbitral dispute with a foreign dimension, susceptible of being subjected to
the international bodies of FIFA and concerning the statutes, regulations,
directives of FIFA, will be submitted to its internal arbitral bodies&nbsp;», constitutes
a valid CAS arbitration clause as it refers to FIFA’s internal arbitral bodies
(even though no such arbitral bodies exist in practice). </p>
<p class="MsoNormal" align="justify">A flurry of other less convincing
arguments raised by the defendants were also dismissed by the Court, which came
to the conclusion that the clause invoked did not aim at a defined legal
relationship and could therefore not be considered an arbitration clause in the
sense of articles 1681 and 1682, §1 of the Judicial Code. There is, however, no
indication that the Court of Appeal fundamentally objects to FIFA, UEFA or the
URSBFA imposing that <b>certain</b>
disputes be dealt with by the CAS. Crucially, the emphasis is on <b>certain</b>:<b> </b>what<b> </b>the Belgian court
criticized is the general all-inclusive wording of the current FIFA Statutes. </p>
<p class="MsoListParagraphCxSpFirst" align="justify">&nbsp;</p>
<p class="MsoListParagraphCxSpLast" align="justify"><b><i>4.&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i>What are the immediate consequences of this invalidity for FIFA and the
CAS?</i></b></p>
<p class="MsoNormal" align="justify">For Seraing, the consequences are
vital, any other finding would have put an abrupt end to its case before the
Belgian court. Now, it will have the right to argue its case in front of the
Court of Appeal in October, and this is a victory in itself. Yet, beyond
Seraing, the systemic effects are in my view far less far-reaching than highlighted
in the media. FIFA was never immune from challenges by clubs (and other
football stakeholders). It was, for example, repeatedly attacked in front of
the European Commission on competition law grounds. Moreover, clubs, such as
the SV Wilhelmshaven, were <a href="http://www.asser.nl/SportsLaw/Blog/post/sv-wilhelmshaven-a-rebel-with-a-cause-challenging-the-compatibility-of-fifa-s-training-compensation-system-with-eu-law">already
challenging</a> the implementation of CAS awards confirming FIFA sanctions in
national courts. In this regard, there is nothing new under the sun. Finally,
the Court of Appeal has not excluded that it would accept a reformulated CAS
arbitration clause with a better-defined scope (such as one that would narrow
it down only to disputes arising out of the regulations and decisions of FIFA).
</p>
<p class="MsoNormal" align="justify">In practice, not much should change
with the Seraing ruling. FIFA will continue to hand out its decisions
sanctioning clubs circumventing its rules. The Swiss courts, which are under
the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:22007A1221(03)&amp;from=EN">Lugano
Convention</a> primarily competent to hear challenges to the decisions of a
Swiss association, will continue to enforce the CAS arbitration clauses by
reference as they have always done, and clubs will, therefore, continue to have
to go through CAS arbitration (or they will have to wait to be sanctioned by
their national associations to initiate proceedings in front of national
courts). Furthermore, from a strategic point of view, few clubs (unless they
are desperate like SV Wilhelmshaven and/or backed by an external funder such as
Seraing) will be interested in starting a multi-year litigation odyssey in
national courts to challenge FIFA (or any other sports governing body, SGB).
The same is true for athletes (let’s remind that Claudia Pechstein is bankrupt
and still far from having won her case). Doing otherwise would mean being
ostracized from professional football for many years, something very few clubs
(and athletes) can afford. Thus, while the Seraing judgment confirms that going
to national courts is an option that is available to clubs challenging FIFA, it
does not affect the general governance context of global football (and sports
in general) that remains extremely unfavorable to litigation in national
courts. Challenging FIFA in national courts was never out of question, it was
(and remains) just very costly and very unlikely to succeed, and Seraing has
changed this state of affairs only at the margin.</p>
<p class="MsoNormal" align="justify">&nbsp;</p>
<p class="MsoListParagraph" align="justify"><b><i>5.&nbsp;&nbsp;&nbsp;&nbsp;
</i></b><b><i>Why do I think Pechstein is more important than Seraing? </i></b></p>
<p class="MsoNormal" align="justify">As pointed out, the Seraing case might
encourage a re-writing of FIFA’s statutes and reminded us that CAS arbitration
clauses cannot cover any and every dispute that can arise between SGBs and
clubs (or athletes), but it stops there and does not challenge the
institutional structure of the CAS, nor its centrality in the global governance
of sport. The Pechstein ruling of the OLG München was more interesting in this
regard, as it was addressing the core institutional problems of the CAS. These are
not related to the voluntary nature of CAS arbitration (I personally think <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2920555">there are
good reasons to bind athletes and clubs to CAS arbitration even against their
will</a>). Instead, the critical focus should be on CAS’s structure as a
judicial institution that is not legitimated like any other arbitral tribunal
by autonomous free consent, but by public interests (e.g. the neutral
governance of global sports, the worldwide fight against doping or the
regulation of the transnational labour market in football). Thus, CAS’s
function and legitimacy must lie primarily in its role as an independent
counter-power to the transnational private authority exercised by SGBs. It is,
therefore, crucial that its independence from the SGBs be submitted to more
stringent control than it currently is (see <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983">our paper</a>
with Ben Van Rompuy on this question). The OLG München recognized it in its
Pechstein ruling, but the BGH <a href="https://verfassungsblog.de/the-pechstein-case-transnational-constitutionalism-in-inaction-at-the-bundesgerichtshof/">failed</a>
to appreciate this profoundly constitutional question and the importance of at
the same time saving forced CAS arbitration and challenging the current set-up
of the CAS. The Pechstein case is now pending at the German Constitutional Court
and should be decided relatively soon (but the German press recently <a href="https://www.bz-berlin.de/berlin-sport/noch-kein-termin-fuer-pechstein-beim-bundesverfassungsgericht">reported</a>
that there is still no date for a hearing). The fact that the Constitutional Court
has <a href="https://www.janforth.de/endgueltige-entscheidung-zu-pechstein-in-2017/">accepted</a>
to take the case on its docket is already a sign of its skepticism towards the
BGH’s decision. If we want to see a ground-breaking, earth-shattering,
revolutionizing new <i>Bosman</i> we better
turn our heads towards Karlsruhe, the winds of change in sport justice might come
from there... </p><br>http://www.asser.nl/SportsLaw/Blog/post/seraing-vs-fifa-why-the-rumours-of-cas-s-death-have-been-greatly-exaggerated
http://www.asser.nl/SportsLaw/Blog/post/seraing-vs-fifa-why-the-rumours-of-cas-s-death-have-been-greatly-exaggerated#commenthttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=cbb083de-c28a-481f-8ccc-5fdfdbebd57bMon, 10 Sep 2018 16:09:00 +0200BlogInternational Sports Law CasesInternational Sports Law CommentariesAntoine Duvalhttp://www.asser.nl/SportsLaw/Blog/pingback.axdhttp://www.asser.nl/SportsLaw/Blog/post.aspx?id=cbb083de-c28a-481f-8ccc-5fdfdbebd57b0http://www.asser.nl/SportsLaw/Blog/trackback.axd?id=cbb083de-c28a-481f-8ccc-5fdfdbebd57bhttp://www.asser.nl/SportsLaw/Blog/post/seraing-vs-fifa-why-the-rumours-of-cas-s-death-have-been-greatly-exaggerated#commenthttp://www.asser.nl/SportsLaw/Blog/syndication.axd?post=cbb083de-c28a-481f-8ccc-5fdfdbebd57b